Tort reform and conservative “justice”

The uproar over the US Chamber of Commerce ads attacking Tom Daschle for his position on tort reform coincided with a germinating thought. Tort reform seems indicative of the conservative attitudes toward not only individual rights but also the legal system and the concept of justice.

Advocates of tort reform generally refer to frivolous lawsuits and runaway verdicts. I ask the rabid anti-Daschle bloggers blathering about tort reform and Daschle’s ties to “trial lawyers” (now roughly equivalent to “liberal” in the Repugnican pantheon of evildoers) to document the frivolous lawsuits cluttering courts in South Dakota. Recall that when Newsweek ran a cover story last December on “lawsuit hell,” much of its “evidence” was wrong.

What about runaway verdicts? In April, the federal Bureau of Justice Statistics examined civil trial cases and verdicts (PDF file) in 2001 in the 75 largest counties. Among other things, it revealed

  • Plaintiffs won 55% of the trials.
  • Juries decided 75% of all trials and 93% of those in tort cases.
  • The median amount awarded to plaintiffs for all trials was $33,000, an almost 90 percent decrease from nine years earlier. There were higher median awards in contract cases ($45,000) than in tort cases ($27,000).
  • Punitive damages were awarded in 6% of the trials the plaintiff won. The median punitive damage award was $50,000. (And the report itself notes these verdicts predate State Farm Mutual Automobile Insurance Company v. Campbell, where the U.S. Supreme Court suggested that punitive damage awards more than four times the amount of compensatory damages come close to the line of constitutional impropriety.)
  • Plaintiffs prevailed in only about a quarter of medical malpractice trials. Of those who prevailed, however, half received verdicts of at least $422,000.

These statistics — which do not include reduction or modification of damage awards on appeal — don’t seem to indicate a runaway legal system. Moreover, the attack on Daschle was based on a federal bill to limit recovery in medical malpractice actions. It never mentions that South Dakota already caps damages in such cases. Contrary to their standard cry that the feds shouldn’t be involved in local affairs, conservatives want federal law to dictate what happens in South Dakota courtrooms.

How does all this relate to individual rights? In advocating tort reform, the conservatives are concerned about the effect on business. For example, the Bush-Cheney website says that “legal reform” is necesary because “the threat of frivolous lawsuits puts a damper on job creation, investment and expansion.” Yet anyone in the plaintiffs’ bar will quickly portray this as corporate America vs. individuals because individuals usually are the plaintiffs in tort lawsuits. As noted, the BJS study showed 97 percent of tort plaintiffs are individuals.

To me there is a more concerning message. For there to be a “runaway verdict,” there must be a “verdict.” For there to be a “verdict,” there must be a trial. Juries decide the vast, vast majority of tort cases that go to trial. Juries are local men and women given the power to sit in judgment of legal disputes, be they between individuals, businesses, or individuals and businesses. Thus, conservatives are saying you can’t trust juries made up of your neighbors. They want Congress to restrain this unique cornerstone of our democracy, again advocating a position contrary to assertions that Washington needs to quit interfering in local affairs. How much more local can you get than a jury? How much closer can you get to reflecting community values?

This is simply indicative of conservatives’ views of the concept of justice. Look at conservative support of the Patriot Act and its impact on civil liberties. Look at how “due process” or “right to counsel” was blithely disregarded in the enemy combatants cases (the American Bar Association has an excellent analysis as it relates to US citizens in a PDF document here). Look at what we have created at Guantanamo and its relationship to the rule of law. The predeliction to elevate government power over individual freedom is reflected in their stance on policies that directly impact individual decision-making. Thus, for example, when it comes to abortion or marriage, the right of an individual must be sacrificed to their “thou shalt not” view of morality.

Let me point out that I am not a member of the plaintiffs’ bar or their organizations. To the contrary, the litigation work I do is exclusively for defendants. Anyone in the legal profession will admit the civil justice system is not perfect. Yet the same is true of the legislative and executive branches and almost anything else in life. I also think any civil trial lawyer worth his or her salt — whether on the plaintiff or defense side — will tell you that attacking access to the courts and the jury system is not a solution. Yet that is one aspect of a conservative brand of justice.

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