Still Pissed Off About the Hawley-Smoot Tariff

Monday, September 06, 2004

Legal Argument?

I hope so. I just found a liberal lawyer blogger who links a post about tort reform. Considering that my views on this subject are neither typically conservative (that I know of) nor typically liberal (that I know of), I wonder how he will respond to my comment, if at all.

Mostly I'm linking this so I will remember to go back and check for a reply. My readers don't have to care.

Update: Since I'm unlikely to find that blog again, and in response to Patton's request in the comments, I'll just rehash my argument here, and y'all can take swipes at me if you feel so inclined.

In general, liberals believe that our protectionist laws should stongly favor plaintiffs against companies (and in personal injury actions, that's virtually all you ever get), because companies are big and bad and mean, and poor plaintiffs deserve a million dollars for pain and suffering and such.

Conservatives believe that all plaintiffs are jackals who fake injuries, scheme for the deep pockets, and systematically work to undermine capitalism by hitting businesses which could otherwise develop new products, employ new people, and so forth.

Under such a dichotomy, the liberal approach would favor expansive liability with little or no controls to protect companies. The conservative approach is to cap liability so that companies can take more hits without going out of business.

I think the conservative approach - caps on recovery - is calculated to create the most unjust situation, and therefore I reject it as fundamentally unfair to both plaintiffs and defendants. By that same token, I don't believe the law should reward stupidity, and so I favor courts which bascially ask, "You were dumb enough to do what???" before throwing cases out. Thus, I'm not squarely in either camp.

Here's why I reject the conservative approach. By capping damages, defendants will, in the aggregate perhaps, reduce their overall liability, thus allowing them to accomplish the good things conservatives want to accomplish (employ more people, develop new products, etc.). I suppose caps might be sensible in that case, because companies will therefore be more insurable, and can stay in business, and everyone's happy. The problem with the Plaintiffs.

When we speak of tort reform, it is perfectly cold-hearted to assume that it should stem entirely from a desire to protect businesses. We also want to dissuade frivolous lawsuits, and at the same time relieve the burden on our courts. Suppose that Bob fakes an injury, and says it was caused by a defect in his Ford. He concocts a story and sues Ford out of greed, pure and simple. Now Ford has very good lawyers, and they will look into Bob's claims and soon discover that his story is weak, he has no witnesses or proof of defect, that Bob has been fired from every job he's ever worked (so his damages for lost wages will be minimal), he has a criminal record a mile long (to impeach his credibility, should it become an issue), and everyone he knows thinks he is slime. Also, he has a swastika carved into his forehead, and he's suing in New Orleans (over 50% black).

In summary, Bob has a highly scarce chance of winning this case. But Ford can't quite get it thrown out. So the parties meet to discuss a settlement, and they pick a paltry sum: $25,000. Ford is willing to pay this, because it will cost them more than 25k just to pay their lawyers. It's a simple cost-benefit analysis. And Bob is more than happy to take it, because after paying off his attorney's fees, he walks away with a wad of cash (about $16,000) that he did not earn and to which he has no right. In this situation, note that statutory caps on recovery won't held Ford at all. $25,000 is well below anything that any legislature ever contemplates as a cap, so Bob is not affected by "tort reform" in the least, and the result is unjust.

Now consider Chuck, who is really is injured when his Ford breaks down. Chuck is a very sympathetic character, with a wife and ten small children, he used to have a lucrative job at the shoelace factory making $90,000 per year, now he's permanently disabled and horribly disfigured, and the cause of the accident was clearly and indisputably caused by the gross negligence of Ford's upper management. He quickly racks up a zillion dollars in medical expenses, not to mention pain and suffering and so forth.

In summary, Chuck has an air-tight case, and I think he really does deserve compensation. There is nothing at all of frivolity in his case. He was injured through no fault of his own, and Ford should have to pay for their gross negligence. But because of statutory caps, Chuck can only recover two thirds of his medical expenses, and nothing for anything else. Chuck is affected by "tort reform," much to his detriment, and the result is unjust.

Tort reform, meaning statutory caps, have no inhibiting effect whatsoever on those who would abuse the system, because a recovery to the statutory limit still leaves them in a much better position than before. And they leave truly deserving cases uncompensated. For those reasons, I reject statutory caps as a means of tort reform.

If I had my druthers, I would institute tort reform by limiting liability. That is, I would recognize that doctors (for example) are human beings. If they operate while drunk, or they leave a scalpel in the abdomen, then they should get slammed with the full weight of every cent of punitive damages available. But if they do something minor (example failure to use fetal monitoring, which is of dubious value anyway), liability should not attach at all. Give them some freakin breathing room. They are people, not machines.

The problem is that such an approach might not be possible, legislatively, and at the very least would be extremely difficult. Medicine, like many things, is a fluid science, with the horizons of knowlege constantly being expanded. So if a legislature sits down and says "No doctor shall be liable for damages if he fails to use fetal monitoring," the law will be unresponsive should medical science ever decide that wait, no reasonable doctor should go without fetal monitoring. And legislators aren't doctors (usually), the legislative response to medical discovery will be even more slow and cumbersome. Plus doctors would have to fill their heads with equal parts medicine and equal parts regulation, which I think is a truly foolish approach. I suppose the legislature could try sweeping language, such as "no doctor shall be liable for small mistakes, only if they do something reeeeeally stupid," but the imprecision in such a statute wouldn't help doctors, judges or juries.

Instead, I propose that any tort reform go to expert witnesses, in cases where experts are likely to testify. The problem with medicine is that, like any scientific endeavor, there are always different points of view. I might remove a patient's kidney one way, and somewhere in the world there is a doctor who would have done it a different way. So the Plaintiff's attorney will find that doctor, pay him a million dollars, and have him tell the jury that I'm an irredeemable moron. By using partisan (because paid) doctors, juries are likely to be overawed by the signifcance of ordinary mistakes.

In the German legal system, the idea of an expert retained by a party is completely unthinkable, and in this case, I agree with the Germans. Instead, the judge has a list of trusted experts in different fields and calls upon them as necessary to help with different cases. Of course, the German approach cannot simply be adopted wholesale into the American system, but I would take that idea as my starting point and work from there.