Friday, March 23, 2012
Tort reform? Maybe not
March 23, 2012
BY ADAM PARKER
The Post and Courier
The American public hears a lot about frivolous lawsuits and excessive awards and the need for tort reform. Politicians, insurers, corporate representatives and others have argued that caps on monetary awards and a reduction of jury trials can help lower — or at least contain — insurance costs, health care expenditures and more.
But this claim is misleading, some argue, and a new documentary called “Hot Coffee” sets out to illustrate why.
Edward Graham, an attorney who specializes in medical malpractice cases, is jumping into the debate. He is sponsoring a free screening of the movie at The Joe Riley Stadium this Sunday.
The 6:30 p.m. screening will be accompanied by live music by local recording artist Danielle Howle and her band Firework Show. Door prizes and free gifts will be distributed; food and beverages will be available for purchase.
“We will have a star-studded panel on hand to address these issues and how they relate to the rights of citizens in South Carolina,” Graham said.
The panelists — Judge Alex Sanders, local tort law professor Constance Anastopoulo, and constitutional law expert John Vail (who served as counsel in two of the cases depicted in the movie) will introduce the themes in the movie and answer questions after the screening.
Frivolous suits are not as common as the public is led to believe, Graham said. And already the legal system imposes checks on unscrupulous attorneys who try to extract excessive awards for their clients. Those checks include fines, licensing requirements, a robust appeals process, judicial discretion and jury judgments, Graham said.
Generally, corporations impose mandatory arbitration (in lieu of jury trials), promote award caps and generally ridiculed certain legal complaints publicly in an effort to protect their interests at the expense of individual Americans, Graham said.
“The documentary is directed by a former public justice attorney who was somewhat annoyed and mystified by the willingness of the citizens of our country to give up their right to a honest legal system,” Graham said.
Director Susan Saladoff, an attorney based in Oregon, has challenged the public to define the word “frivolous.” Most people who sue don’t think their case is frivolous, and most people who are familiar with all the facts won’t typically use that word, she has said.
The movie, which highlights four cases, takes its title from the 1992 episode in which Stella Liebeck, then 72, spilled scalding coffee purchased from a McDonald’s into her lap while sitting in the passenger seat of a parked car. The coffee was 180 degrees and caused third-degree burns, requiring skin grafts and years of expensive treatment and recovery.
Liebeck wanted to settle for $20,000; enough, she thought, to cover actual and anticipated expenses. McDonald’s offered only $800. So she sued.
“I want people to actually take action,” she told The Washington Post last June. “I want them to be informed about what they’re voting for ... to be unbiased jurors, to be open-minded. I want people to correct other people when they hear myths. I want people to be empowered, to take back our justice system.”
Vail, who works at the Center for Constitutional Litigation in Washington, D.C., said the push to limit jury trials, cap awards, influence judges and spread the myth of frivolous suits is a fundamental attack on democracy itself.
“Americans should remember that a jury trial is a democratic moment, a time when randomly selected citizens make judgments on behalf of the rest of us, judgments that we all trust,” Vail said. “We don’t worry about who lobbied them and how they were corrupted by campaign contributions.”
Graham, who defends clients with complaints about malpractice and injury, said the issue demands more public engagement.
“Tort reform takes away rights of people to seek justice from jurors,” he said. “Politicians insist jurors are perfectly capable of condemning a man to death, but they’re not OK for corporate cases. Especially in this election season, there’s so much crazy talk out there.”
* * *
Q: Ed spoke of the corrosive effect on the 7th Amendment of corporate influence, especially with regards to arbitration requirements in contracts and agreements (preempting people’s ability to sue in court). How pervasive is this problem?
A: Ubiquitous. ... There are antitrust cases pending charging credit card companies with collusion in adopting arbitration clauses.
Q: Government in recent years seems to be especially pro-business. What are the implications of this cozy relationship, and what about decisions like Citizens United?
A: I agree with your premise. Money has a systematic advantage in the marketplace of ideas: the state subsidizes its power by allowing it to aggregate with reduced risk (limited liability for corporations) and gives it perpetual life (corporate existence). There is no comparable state support for people who earn their living through sweat. Citizens United is based on the demonstrably false premise that corporations reflect the wills of their shareholders. The primary effect of Citizens United is to empower corporate managers who act primarily in their own interests, not in the interests of shareholders or the public. Here’s a good thought experiment: what would a publicly traded corporation do if it were required to disclose to shareholders and potential shareholders the benefit it expected to receive from each political contribution it made?
Q: There’s lots of complaining about “frivolous lawsuits” and lots of talk about capping awards and limiting liability. Do defendants and their lawyers game the system? A lot?
A: There is lots of talk about frivolous lawsuits. There are, in fact, almost no frivolous lawsuits. So ask: Why does the talk persist? Somebody keeps repeating a falsehood. Capping awards, by the way, by definition does nothing to affect frivolous lawsuits: by design it affects only lawsuits found by juries to have been MOST meritorious. That is perverse. Good defense lawyers — ones who actually try cases, and not ones who simply sit in offices — respect juries. They do not advise their clients to seek bench trials. I was at a seminar Monday night debating Victor Schwartz, general counsel of the American Tort Reform Association, and Mark Behrens, his law partner. They agree on this point. I expect the good defense lawyers in Charleston would say the same thing.
Q: What should Americans know and do to protect the right to a jury trial?
A: In the 19th century, the right to sit on a jury was viewed as the equivalent of the right to vote. Juries make decisions that we didn’t, and shouldn’t, trust legislators to make. Americans should remember that a jury trial is a democratic moment, a time when randomly selected citizens make judgments on behalf of the rest of us, judgments that we all trust. We don’t worry about who lobbied them and how they were corrupted by campaign contributions. People who actually serve on juries emerge with a profound respect for the institution. Contrast that with the single-digit support for Congress.
Subscribe to:
Posts (Atom)