| |
How in the world did it
happen?
How did a profession
so admired, so revered, so . . . so everything good . . . become so despised?
How did the profession of John Adams, Thomas Jefferson and so many of
the Founding Fathers become an object of scorn, ridicule and outright
demonization?
Well, citizens, it
wasn't easy---and it didn't happen overnight. It's taken a couple of decades,
but it's been consistent, persistent and relentless. They've certainly
stayed on message, haven't they? Lawyers are hurting America. The courts
are jammed with frivolous lawsuits. Juries are rendering outrageous awards.
The system is out of control. Lawsuits are ruining our economy. Medical
costs have skyrocketed because of frivolous medical malpractice lawsuits.
American manufacturers are having a difficult time staying competitive
with their foreign counterparts because of product liability suits. Plaintiffs
have a lottery mentality and see their case as a chance to get rich. Same
adjectives, same phrases-over and over.
And then it's the
lawyers. More specifically, trial lawyers. Greedy trial lawyers. Greedy,
unethical, avaricious, slippery, conniving, hateful humanoids. Contingent
fee freaks with personas which would fall somewhere between used car salesmen
and T.V. evangelists. Slimy, slithering, amoral psychopaths whose only
goal in life is to drive their Rolls Royce Silver Cloud up to their Gulfstream
and then jet off to St. Croix. Gold chains, exposed chest hair, designer
sunglasses and Italian gaucho-wearing intellectual prostitutes. Parasitical
blobs of absolutely worthless protoplasm. Yep, those are the guys who,
down deep, are responsible for the decline in civilization.
Speaking points for
some "tort reform" organizations actually say this: When it comes to demonizing
trial lawyers, you can't go too far! No one with a triple-digit IQ would
argue that in the last two decades, the anti-civil justice crowd has cut
the trial lawyers any slack President Bush the First slammed us during
his acceptance speech at the Republican National Convention in 1992. His
offspring, referred to by Molly Ivins as "Dubya", continued the family
tradition by kicking us around in the 2004 State of the Union speech.
Here we are at war with Iraq, can't find Osama, going back and forth between
orange and red alerts (whatever that means), over two million Americans
can't find a job, we've got a $550 billion deficit and the guy who got
his job because of a lawsuit (Bush vs. Gore) somehow finds time to dump
all over the lawyers. Lawsuits that get him in office are apparently really
nifty things, but if they're to pay for the medical care for a brain-damaged
baby for life then they're "frivolous". Newsweek's cover story cries,
"Lawsuit Hell", and then uses anecdotes regarding claims made by some
relatively strange humans to blast the entire civil justice system.
So, all of this is
the backdrop for a scene which is then played out in courtrooms all over
America every day. Some relatively innocent lawyer standing up in front
of a jury panel for voir dire examination, looking into the hateful glares
of forty pairs of eyes with seething owners, gets to talk to them about
justice, about compensation, about doing the right thing. Five minutes
into the process the lawyer is wondering just why he or she didn't keep
their college job and sell shoes for a career.
Does all of this
mean that the so-called "tort reformers" have won? Is the fight over?
Can some semblance of civil justice be salvaged? Will corporate accountability
just evaporate? Will our courts remain open to the individuals who seek
justice, or will they remain the purview of the wealthy and powerful?
Eventually, Americans
will wake up to the fact that the civil justice system is not only an
important, but certainly a critical factor in our democratic equation.
There will always be periodic abuses and excesses, but those problems
exist in all institutions. Free enterprise capitalism without accountability
for one's malfeasance is a dangerous system-and one that is, for sure,
destined to fail.
SOME
BASIC STARTING POINTS
To do a complete
analysis of the civil justice system-and the attempts that have been made
over the last two decades to emasculate it-there are certain maxims which
have to be addressed. They are as follows:
THE
FOUNDING FATHERS WEREN'T COMPLETE IDIOTS. After they'd thrown
in all of that freedom of speech, religion, assembly, right to bear arms,
right not to incriminate your own self-type stuff, Adams, Jefferson, Washington,
Franklin and their buddies decided that trial by jury would probably be
a pretty good thing. After they'd taken care of that in criminal cases
(sixth amendment) they thought it would be important enough in civil cases
that they gave it its own amendment: the seventh. If we count being in
the Bill of Rights a fairly good expression of importance, then all of
those guys whose oval pictures adorn our currency felt that jury trials
in civil cases were fundamental to our society. We then begin with acknowledging
that civil jury trials are now and have forever been part of the fabric
of American Democracy. The civil jury trial is important enough to fight
for.
CORPORATIONS
HATE JURIES. There's been a lot of talk about "individual accountability"
the last few years, hasn't there? You hear a lot of that from defense
lawyers in tobacco trials. You never should have smoked the darn thing,
dummy. You knew it was dangerous. You knew it was addictive. You knew
we were lying when we said that they weren't dangerous or addictive---no
one in their right mind really believed us. If you did, you're a fool.
Every once in a while, a jury of twelve lunatics sit around in the jury
room, kicking around the evidence and discussing the case and it dawns
on them: Hey, what about corporate accountability? Then sometimes they
really stick it to the corporate wrongdoers. Well, corporations hate this---they
really hate this. They hate it because they can't factor the verdict into
the equation regarding the corporate decisions. All of their accountants
and actuaries crammed together in one room can't---with any accuracy---predict
just how much a jury down the road will make them pay for their transgressions.
How are they then going to decide whether or not to transgress? It absolutely
baffles the bean-counters. Corporations also hate it that school teachers,
parking lot attendants, pipefitters, housewives and just about every other
type of human can get together in a group, take a real hard look at corporate
conduct and then have the power and legal authority to make them change
it.
WE
REALLY NEED CIVIL JURY TRIALS. Does anyone really think for a
second that if you removed the specter of a jury trial that polluters
would stop polluting, drunk drivers would sober up, doctors would stop
operating on the wrong patient and truckers would back off and maintain
a safe distance between them and your rear bumper? A well lit, functional
courtroom with an unlocked front door, sitting there with no one in it,
but with everyone having access to it, is an incredibly effective behavioral
modification device. The brass knocker being slammed twice in succession,
followed by the bailiff's command to, "All rise!" has tightened more corporate
sphincter than any angry shareholders' meeting. Civil jury trials serve
as a reminder that we're all accountable for lapses in behavior which
results in injury to another's person or property. Because of these trials,
procedures are constantly reviewed for effectiveness, spills on grocery
store floors are promptly cleaned up, speed limits are observed, tests
are given before keys are passed out, and millions of other preventative
measures are taken every day to avoid potential liability for harming
others. As an obvious result, there's a lot of harm that's avoided.
THE
TORT REFORMERS HAVE NO INTEREST IN FAIRNESS. Nothing causes bile
to reflux up a trial lawyer's esophagus faster than hearing any version
of the following: We're not trying to deprive anyone of having their day
in court---we've just trying to level the playing field. Bullhockey. Just
what good is your day in court if so many restrictions have been placed
on the jury that their verdict is meaningless? If they award too much
money, the court issues a remittitur. But if they award too little, why
isn't there an additur? If a doctor can't place a cap on the amount of
harm he can do, how can the legislature place a cap on the amount of compensation
a jury can award? Most states won't allow plaintiffs in personal injury
trials to even hint to the jury that grandma sitting at the defense table
has a whopping half-million dollar Allstate policy covering the carnage
she created when she got drunk and wiped out two cyclists. No, campers,
fairness has nothing to do with any of this. It's criminally hypocritical
for tort reformers to even mention that word.
HISTORICAL
FUNCTION OF TRIAL LAWYERS IN AMERICA Like it or not, trial lawyers
have always played an important role in America. Take a look up there
at Rushmore-two trial lawyers (Lincoln and Jefferson) have their faces
chiseled right there next to George and Teddy. Trial lawyers authored
the Constitution, the Bill of Rights and the Declaration of Independence.
Throughout the history of our country, they fought for criminal justice,
for civil justice, for civil rights, for property rights, voting rights,
housing rights, employment rights and just about every other kind of rights
we enjoy. They jumped at the chance to represent the underprivileged,
the poor, the outcasts. They fought for evolution-teaching educators in
the Bible Belt and for black folks in the Deep South. They represented
unionists when company goons and company-sponsored police squads beat
and shot picketers. Trial lawyers have never been hesitant to take on
the most powerful corporate interests in the country-sometimes on behalf
of only one citizen.
America has always
had a love-hate relationship with trial lawyers. On one hand, they're
dashing romantics, pleading with juries to do the right thing and restore
justice to an unjust situation. On the other, they're blood-sucking shysters
who are ruining the country. Rarely do movies, books or plays cast the
trial lawyer as anything other than the hero. The best selling author
in America for the last decade has been a trial lawyer who has written
principally about other trial lawyers. In polls which ask who you trust,
lawyers always finish near the bottom. But in polls asking what you want
your children to be when they grow up, lawyers always finish near the
top. This love-hate relationship has always existed and will continue
to do so. Sure we need lawyers, America seems to say . . . but by God
they're a pain in the ass.
And why is that?
Why the lawyer jokes, the lawyer put-downs, the anti-lawyer magazine articles
and books? Why did Carl Sandburg ask the question, ". . . tell me why
a hearse horse snickers hauling a lawyer's bones."? Is a lawyer's demise
such a fortuitous event that it even makes the damn horses laugh? Why
such despisement, disdain, opprobrium and antipathy?
The profession which
most closely tracks the lawyers with regard to public suspicion and contempt
is the media. Most adjectives people use to describe lawyers are also
reserved for the media. Just what are the parallels between the two professions
which would result in such an undesirable public perception? One, obviously,
is a high degree of visibility. The lawyers and the media are right there
in front of you every day. Their jobs are very public undertakings. Another
would be that their members are, by nature, verbose, loquacious individuals.
But the most important similarity between the media and lawyers would
have to be the effect they have on people. They hold people accountable.
When you get indicted for embezzlement, your picture's going to end up
in the newspaper, and you're going to get sued by your partner. Your spouse
catches you in what they used to represent as a "compromising position",
he or she hires a lawyer, you're sued for divorce, and somehow the juicy
tidbits of the whys and wherefores get leaked to the media who, for some
reason, feels that it's absolutely imperative that the whole world know
of your peccadilloes. Trial lawyers are virtually guaranteed that the
vigorous, aggressive, thorough completion of the tasks they are retained
to perform will result in making an enemy for life. No lawyer ever won
a big case for his or her client and then received a Christmas card from
the defendant. Conversely, when a lawyer loses a big case for his or her
client, that almost-a-hero status goes right out the window.
Trial lawyers are
a societal paradox: we want 'em, we need 'em, but we sure don't have to
like 'em.
HAS
THE SYSTEM MADE A DIFFERENCE?
As pointed out previously,
for the last two decades lawyers and juries have been targets for those
who are threatened by any system of accountability. Their message has
been that lawyers and juries are ruining America. They make up statistics
(like Dan Quayle's statement at the 1992 Republican National Convention
that 70% of the lawyers in the world practice in the U.S.) and advance
the demagoguery (like Quayle's running mate, Bush the First, stating at
the same convention that he's ready to take on those "tasseled-loafer
trial lawyers"). So, lawyers have been under attack for some time and
there's no relief in sight. The same can be said for juries.
But has the civil
justice system done any good? What can the system point at to justify
its existence? In what ways has society benefitted from this system over
these last twenty years?
Well, let's start
with the Seventh Amend, standing right there in the middle of the Bill
of Rights. When the framers of the Constitution started enumerating our
basic rights, once they got past all of that freedom of speech, freedom
of religion, bearing of arms, right against self-incrimination, they started
kicking around trial by jury. Sounded like a pretty good idea to them.
When they got to Number Six on the Constitutional Hit Parade, they decided
that when charged with a crime, we should have the right to have our fate
decided by a jury. Not a prosecutor or a judge, but by the citizens. That
must have got them all fired up, because when they were sitting around
clicking their ball points and gazing at the ceiling to figure out just
what in the world Number Seven should be, someone came up with the idea
that if this jury trial stuff was so nifty then it should even be extended
to disputes between citizens. When the embers from someone's fireplace
burned down their neighbor's barn and cooked a few of his horses and cows
in the process, should the neighbor with the charred property have a right
of recourse? And who should decide responsibility? They decided that if
a jury trial was so good for criminal cases, maybe it should be given
in civil cases also. So, we can point to the Seventh Amendment as the
establishment of our constitutional right to trial by jury in civil cases.
But where has this
right taken us? Has it helped or hurt society? Are we better off with
it or without it?
Just consider what
things were like twenty, thirty years ago. When many of us were growing
up, parents didn't have to gripe at kids to fasten their seat belts---there
just weren't any. Two cars ran into one another and bodies were flying
everywhere. Some really smart engineer figured out that a lot of us would
live a lot longer if we were wearing a seat belt. They began appearing
in some models of some cars. Juries helped the rest of the industry realize
that we'd all be a lot better off if all cars had them. And now we do.
Since then, juries have decided that a lot of seat belt systems really,
really suck. So they were redesigned.
Nothing will absolutely
ruin a family Christmas party faster than one of the kiddos' pajamas bursting
into flames as everyone sits around the fireplace sipping egg nog and
singing a carol about a good king whose name no one can pronounce. Does
flame-retardant pajamas for children sound like a pretty good idea? Juries
thought so. When manufacturers got scorched by juries for not taking one
more step in the manufacturing process to protect the kids, they changed
their product. Many of us grew up learning reading, writing and arithmetic
in school rooms laden with asbestos. Ain't no biggie...because many of
us had homes filled with it, worked in buildings full of it and even went
to churches saturated with it. Asbestos was everywhere. As the asbestos
generation coughed and hacked its way into adulthood, the doctors kept
finding that these autopsies kept showing lungs filled with the stuff.
A special kind of cancer---caused only by asbestos---was given a name
that was too long and too difficult to pronounce, but it was too deadly.
Predictably, those pesky lawyers started filing lawsuits. Doing discovery.
Getting to the bottom of things. Yikes. They found industry memos which
pre-dated World War II in which our Captains of Industry discussed the
dangers of this stuff. The dangers of asbestos were well-known to the
guys who were making a lot of money off it, but they just couldn't bring
themselves to sharing it with the rest of us. This made juries mad. Real
mad. Their verdicts took abestos out of our lives and out of our lungs.
They changed the industry.
Notice how the shape
of SUV's has changed in the last few years? A little bit wider (expanded
wheel base) and a little bit shorter (lower center of gravity) and "viola"!-they
don't roll over like they used to. It wasn't the Consumer Product Safety
Commission, the Department of Transportation or any other agency of the
federal government who's responsible for the design changes: it was juries.
That's right, juries. They hit 'em between the eyes with their verdicts.
Juries armed with the evidence the trial lawyers had uncovered consistently
found that these vehicles rolled over at normal highway speeds when they
swerved very slightly. Juries decided that the auto manufacturers knew
of this for some time, but decided not to do anything about it. So the
juries did.
The JusticeSeekers are proud to be a part of this tradition.
On June 6, 2001, a jury of citizens from the conservative community of
Cheyenne, Wyoming found in one of our cases that "Paxil can cause some
people to become homicidal and/or suicidal." It took nearly three years
and three BBC documentaries for the full impact of that verdict to be
felt. But on March 22, 2004, the FDA itself decided that the manufacturers
of these new generation SSRI drugs should warn doctors and patients that
there is a "small vulnerable subpopulation" of patients who are at risk
for bizarre, violent reactions to these billion dollar pills. Why did
it take so long? Currently, on-going investigations by a congressional
subcommittee and the Attorney General of New York suggest that maybe,
just maybe, it was because the industry friendly administration and the
drug czars were in cahoots. See what mischief those pesky juries make?
Without question,
the most effective and fair group of individuals to deal with tort reform
would be juries, not politicians funded by the industries held in check
by the civil justice system. When the responsibility for so-called "reform"
is turned over to the politicians, the winners are invariably those with
the most clout, the most influence, the most money. When it's turned over
to juries, the winners are invariably those who deserve to win.
That's the way the
Founding Fathers intended it to be. |
