Thursday, February 12, 2004

The view of a republican (soon to be...hopefully) plaintiff's advocate concerning tort "reform" 
Alright kids, let’s play a game. Let’s see how fast this post creates multiple postings warning of my impending death. Regardless of the risks to my physical well-being, I will post on the topic of Tort “Reform” anyway, and let you all attack me.

A required disclosure: I am a Republican and I am a Conservative. Always have been, always will be. But the actions of my party and my political brethren on this issue baffle me. It seems to me that by supporting tort reform, it appears to confirm the liberals’ constant charge that all that republicans care about is big business and profits. Now, opposing tort reform only to appear to be more sympathetic to the “little guy” is bullshit and not a valid reason to oppose such reforms. But to really oppose it and to understand the basis for doing so is very important. And hopefully this posting will at least help you slightly understand the reason that certain people in the Party oppose such reforms.


Understand first that “tort reformers” don’t really want reform, they want “tort restrictionalism”. It seems that every time a big award is handed down (for instance any tobacco award generally ranges from hundreds of millions up to somewhere in the billions) by a jury, people, particularly conservative talking-heads, get all up-in-arms about the jury’s decision that the defendant was liable for their actions and should be held accountable. In recent years, jury awards have “skyrocketed” and it seems that the legislatures of many states feel their constituents demand that something be done about those “goddamn, blood-sucking trial lawyers.” Sure, it’s the lawyers fault. Seeing as how most, if not all, readers of this blog are soon going to be lawyers, how do you feel about that. Is it all your fault? Is it a personal fault that you advocate on behalf of your client? Is it personal fault that you have excellent advocacy skills? Is it a personal fault that the jury felt empathy for your client because the defendant was a real asshole? Maybe these things are personal faults that trial attorneys need to rid themselves of, but I don’t really think so.

My apologies, I digress. But not only constituents argue for tort reform. The ones that yell the loudest (because their wallets are the biggest) are the lobbies for medical doctors and the lobbies for the manufacturing industry. It is in regards to products liability law and medical malpractice law that most legislatures take up the area of tort reform.

The legislature’s main idea of tort reform is putting “caps” on non-economic damages. This, to me, seems downright offensive. For example, the “cap” on non-economic damages for a wrongful death claim in Wisconsin is $450,000. That’s it. No matter what. Period. Game over. The legislature has determined (in their infinite wisdom no less) that a person’s life is only worth $450,000. I fail to see how a group of people sitting together in Madison can determine that there is not one person, in the entire fucking state, whose life is worth more than $450,000. This concept absolutely blows my mind.

In general, states put “caps” on non-economic damages for any type of injury. It is assumed that we do not want juries over estimating how much someone’s pain is truly worth. Let me put to you an example: Professor Kircher, in his torts class, would ask a particular person how much five seconds of pain is worth. After the student gave his answer, Kircher would then pull out a lighter as ask to hold the flame to the student’s skin for five seconds, and reward him with whatever monetary figure the student suggested. Generally, the student’s original monetary figure would increase dramatically. That’s the concept of non-economic damages. To a disinterested third party, the concept of pain and suffering, mental anguish and the like, are simply numbers to be thrown about. But think about it. How much money would it take for you to voluntarily (or involuntarily) submit to five seconds of pain? When dealing with non-economic damages, you must realize that the pain and suffering doesn’t only last five seconds. It doesn’t last only five minutes. Or five days. Months and years (and lifetimes in certain cases) are generally the time frames we are talking about. But apparently the legislatures of numerous states are wise enough to fully comprehend how much each individual’s pain and suffering will be worth. Basically, the legislatures are saying to every accident victim, “When you get hurt, you will probably suffer. But you will never experience pain and suffering beyond the point where $xxx,xxx will not satisfy you.” It really does boggle my mind how a disinterested third party can say that to any person. The very people that should be looking out for their constituents are in fact screwing them seven ways from Sunday.


Tort reformers attempt to make their case using medical malpractice awards to justify “caps” on non-economic damages. It is continually claimed that doctors are being forced out of practice because of ridiculous malpractice insurance premiums. I agree. Malpractice premiums are absolutely ridiculous. There is no insurance that should cost you as much as doctors have to pay for malpractice insurance. But alas, malpractice suits against doctors are NOT the cause of the rising premiums. Greedy insurance companies are the cause. Damn near every study every conducted concerning the connection between malpractice insurance and “caps” on non-economic damages in malpractice suits shows that there is little-to-no correlation between the “caps” placed on damages by the legislature and the premiums decreasing or at least remaining static. None. No correlation. But wait, it gets worse.

The State of Wisconsin LOVES doctors. The state loves them so much, that they decided to allow doctors to practice medicine without any economic exposure in a lawsuit. Let me explain. When a doctor gets sued, his insurance company comes to the rescue. If the insurance company and the plaintiff can reach an agreeable number, then they will settle somewhere inside the policy limits. But, if they can’t settle, the case goes to trial. Now, here’s the kicker. If the doctor’s insurance policy has limits of $1,000,000 and the jury gives an award of $2.5 million, the WISCONSIN PAITENT’S COMPENSATION FUND kicks in the rest. All of it. The doctor has NO economic exposure at all! None. So how does this system encourage doctors to not commit malpractice? Hell, I can’t figure it out either. But for some unexplained reason, I’m sure the Wisconsin legislature feels that we need “caps” on non-economic damages in medical malpractice cases.


First, I must admit that I took that heading from Paul Scoptur’s law review title. But it is so very true. Tort reform isn’t about the victims, it’s about screwing the lawyers. For as much as people bitch and moan about lawyers (and how lawyers alone created all of the world’s problems) I can guarantee you that if you speak to any victim, he will state that his lawyer is one of the best people in the entire world. Because he went to bat for his client. Because he helped his client recover a fair and equitable settlement. Because the lawyer would listen to his story when no one else would. The moral of this little story is that it’s good to be a lawyer. Even better to be a plaintiff’s advocate.

Now, back to screwing the lawyers. The common misperception that lawyers only sue people to make money. While that might be true in the minority of cases, lawyers sue people (or things such as corporations) because that person did something wrong, and either won’t admit to it or refuses to pay for his mistake. That’s why lawyers sue people. But back to the misperception, I assume the theory is that if these “caps” reduce the amount of money that lawyers can get, then they will stop suing people. They will stop making money. Essentially, the hope is that the lawyers will go out of business. But again, bullshit. Not going to happen.


When talking about tort reform and particularly “caps”, it is important to realize that the person that gets screwed the most is the victim. This is especially true in medical malpractice and products liability cases. The reason for this is that the cost of trying these cases is so ricockulously high, that if there is not going to be a sufficient recovery, the attorney will not take the case. For example, if the “cap” on non-economic damages in med-mal cases is $300K, and the attorney knows that he will have to spend at least, at a minimum, $200K on experts, he’s not going to take the case. And where does that leave the victim? Without recovery. You might as well have slammed shut the courtroom doors on her. She has no recovery.

Another example (see how this works for you): Microsoft is considering developing a new operating system. Microsoft knows that they will have to spend X number of dollars on R&D, X number of dollars on marketing, and X number of dollars on miscellaneous things. Now, if the expected profits outweigh the costs, it is a good business decision to design and manufacture the operating system. Well now, just as Microsoft is getting ready to start manufacturing the new system, the Washington legislature passes a law restricting any software developer’s profits to only .5% beyond what was spent on R&D, marketing, etc. Now will it make economic sense for Microsoft to invest all of that money into the new system? That’s a business decision that they would have to make. But do you now understand a little bit better the precarious situation that the plaintiff’s attorney finds himself in?

Okay, it’s been fun. I’m sure I haven’t covered everything relating to tort reform, nor have I made all the points I wanted to make. But that’s why you all will respond and point out the flaws and undiscussed points in my argument. Thank you, it’s been fun.

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