Corp Reform - Not Tort Reform

The Constitutional Status of Tort Law

Thanks to Ian at Yale for bringing this to my attention.

Professor John C. P. Goldberg, the Associate Dean for Research at Vanderbilt Law School, has written an article for the Yale Law Journal discussing the Constitutional status of tort law, and of proposed tort reforms.

"In short, anyone who takes history seriously will find it difficult to disavow the existence of a federal right of victim access to what we today know as tort law, a corresponding duty on states to provide such law, and a corresponding power in the courts to consider whether certain forms of legislation so undermine tort law, with so little justification, as to amount to a breach of that duty."

Professor Goldberg offers powerful arguments that many of the changes to tort law proposed by big business may in fact be unconstitutional.  Perhaps some of his research and ideas may someday be used to repair the damage done to our justice system in states such as Texas.

Lawyers - Get Grassroots!

I spent some time working for a nonprofit a while ago that canvassed neighborhoods to build support for alternative energy sources.  I learned a great deal about how to run a grassroots campaign, and wanted to offer all of you an easy way to help fight the corporate factions that relentlessly lobby for tort reform. 

Below is an image of a postcard in Microsoft Publisher format.  After you settle or otherwise resolve a case for a client, ask him or her to sign this postcard.  You can either preprint the address and salutation, or provide it for the client to fill in.  Depending upon how your state's political system works, you could have the client sign one for his representative, senator, governor, assemblyman, etc.  I would try not to ask them to sign more than two, because patience wears thin.

You can either mail them off as clients sign them, or you can work with your local trial lawyers' association and arrange for a lobbyist to drop them off en masse every couple of months.

I urge you not to underestimate the power of postcards and letters from constituents.  I've personally seen politicians vote against powerful special interest groups (including large contributors) because of grassroots campaigns.

Obviously, I urge you to check the laws in your state to make sure there's nothing illegal or unethical about doing this.  And if there is, I urge you to challenge it. 

Any office supply store will have prescored postcard paper, or you can simply print them on cardstock and use a paper cutter to cut them out.  If you need assistance in figuring out which politicians to send the postcards to, don't hesitate to ask. 

You have my permission to alter the wording on these postcards to suit your needs.  If you need a format other than Publisher, let me know and I'll see what I can do. 

Here is the publisher file. 

Trial Lawyers for Public Justice Launches New Campaign

I've often been critical of trial lawyers due to their general apathy about the tort reform scam.  However, Trial Lawyers for Public Justice has given me hope.  They've recently launched a new campaign to fight to keep the courthousefor those who need it.

I was very surprised - pleasantly - that they fight against class action lawsuits where the plaintiff's lawyer(s) get as much or more money than the plaintiff. 

Check their site out.

AnLetter to Trial Lawyers

Today's story about those corrupt doctors made me mad. Actually, it made me livid. Not only at them, but at the inability of plaintiffs' lawyers to stop this crap. So, with apologies to the few (2 or 3, tops) trial lawyers who have taken an interest in my site, here's anletter to the plaintiff's bar:

This is anletter to any lawyer who handles or will handle personal injury cases. I invite comments.

Every day, I read or hear something about frivolous lawsuits, doctors being put out of business, and runaway juries. The forces of tort reform use lies and misinformation to spread fear, uncertainty, and doubt about the civil justice system. Sadly, it’s working; tort reform laws keep getting passed, and it’s looking like it may happen at a Federal level. And I blame you.

I blame you because you’re too arrogant to join a team; you think you should lead, not follow. I blame you because you’re too lazy to fight; it’s easier to sit back and complain. And I blame you because you’re too damned greedy; you won’t contribute money to those who would fight for you. So you’re just as guilty as those who lie to the public.

Why don’t you look at what doctors do to get tort reform enacted? They form groups. They make commercials. They call, they write, they e-mail, and they pester their patients, their neighbors, and their lawmakers. And they get results. People believe the bullshit stories that they tell. People empathize for them over their purported loss of money.

So why aren’t you telling the truth about tort reform? Why aren’t you getting people to empathize over people who lost their loved ones? Are you too busy? No – you make your paralegals do half the work. Are you too poor? No – 33% contingent fees see to that. Are you too greedy? That must be it! Why else wouldn’t you help pay for commercials, direct mail campaigns, letter writing campaigns, and anything else you could think of to counter this menace?

Look at what conservatives do: They have scholarships and even schools devoted to brainwashing students into supporting tort reform. They buy media outlets to spread their shrill rhetoric as if it were the gospel truth. They create bogus “grassroots” groups to convince people that everyone supports tort reform. And they get results, too.

So let’s look at what *I* do. I spend my own money – even though it’s not a tax write-off – and my own limited time working on this website. I’ve spent my own money writing, printing, and handing out newsletters about tort reform. I even found the time to organize a letter writing campaign at my college to try and stop House Bill 4 from passing in Texas. And I get results, too. I get over 200 hits a day at my site. I get e-mails and comments from people all over the country, and without exception, every e-mail I’ve received has been positive. Almost all of them have thanked me for telling them the truth about Stella and the McDonald’s lawsuit. At least I will: I e-mailed the lawyer who handled her case, and he never responded to me. In fact, come to think of it, almost every single lawyer I’ve e-mailed regarding this web site never bothered to respond.

I wasn’t asking them for money, either. I’ve invited lawyers to write an article for my site. I’ve asked for permission to link to their sites – which would help them get clients– and I’ve asked permission to quote their work. Again, no response.

Even the relatively few lawyers’ “front groups” that campaign against tort reform wouldn’t respond, either. I e-mailed several of them offering to VOLUNTEER MY TIME to help in any way I could, and they didn’t respond, either. The kicker is that they claimed to be looking for volunteers!

So I ask, what the hell is wrong with you? Are you stupid? Don’t you see that this is literally the fight of your lives? If you lose this battle, you won’t be able to make money anymore! The contingent fee will be reduced. Referral fees will go away – they’re trying to get rid of it in Texas now! And damage caps will mean that the big cases won’t be attractive anymore; why spend $200k on experts if your best day in court is a $250k payday?

You need to come together and form task forces in every state. You need to hire consulting groups to put commercials on TV. You need to send direct mail to every registered voter in the U.S. You need to hold rallies on college campuses. But most importantly, you need to quit being so god damned greedy, and spend your money to protect your ability to make money in the future.

So what if it’s not tax deductible? Taxes will be the least of your worries if your right to earn a living is legislated out of existence. What will you do then, be a defense lawyer? Well, I’ve got news for you defense lawyers out there – if there are no more lawsuits being filed, you’ll be out of work, too; Your corporate employers don’t keep paying you because they like you, they pay you because they need you. Rest assured that if they no longer need you, you’ll stop getting paid.

I’d love it if some of you would give me your time or even some money to help me fight the fight you should be fighting, but you don’t have to. See, despite my own predilection to arrogance and egotism, I’m willing to join a team and work with someone else. So, if I’m just blind, and there really is a group that truly fights the tort reform scam, please tell me where to join; I don’t have to lead.

This battle can be won, because truth and justice – hell, even the American way – are on our side. But the only way to win it is by doing what is anathema to you – spending your money. Here’s how: Tithe. Take 10% of whatever you make, and use it to fight tort reform. Buy mailing lists of voters and send them letters. And don’t try and solicit clients while doing it. Buy radio ads that tell the truth about tort reform. Last month was the ten-year anniversary of the McDonald’s verdict. How about using that to finally tell the truth about it?

If you don’t get off your collective asses, andyour collective pocket books, then Federal tort reform legislation will pass, and you can forget your aspirations of joining the Million Dollar Advocate club. But the biggest tragedy won’t be your inability to join vanity groups. It will be the fact that catastrophically injured people won’t be able to be compensated for their injuries, and they won’t be able to due to your avarice and apathy.

The Contingent-Fee Agreement

I read a very interesting and informative article in defense of contingency fees. The article is a law review article, so it's not a light read, but it is very informative.

The author, Elihu Inselbuch, shoots down many of the myths and propaganda that are used to support the elimination of contingent-fee agreements. Contingent-fee agreements are "the key to the courthouse door," and without them, many people would be unable to file suits to protect their rights.

Corporate Hypocrisy

In 2003, the Texas Legislature passed House Bill 4, a bill that protects medical providers, including some manufacturers of medical devices, by capping the amount of noneconomic damages in personal injury lawsuits at $250,000.00. This cap was ostensibly put into place to protect medical providers from “runaway juries” that award tens of millions of dollars to catastrophically injured patients. However, as it turns out, this bill doesn’t protect medical providers from one group of plaintiffs that receive jury verdicts into the hundreds of millions of dollars: their competitors.

In 2002, Igen International, Inc. was awarded $505 million dollars from Roche Diagnostics for patent violations, with $404 million dollars in punitive damages . While this case took place in Maryland, it could have taken place in Texas, and if it did, neither House Bill 4 nor its progeny, Proposition 12, would prevent Igen from collecting nearly half a billion dollars in punitive damages.

The irony becomes apparent with this hypothetical scenario: Assume arguendo that Roche used Igen’s patents to create a medical device that causes a patient to die on the operating table. Under numerous proposed tort reform bills across the country, Roche would be liable for a maximum of $250,000.00 to the family of the deceased. Yet, Roche was liable for nearly half-a-billion dollars to Igen for patent infringements – an award over 1,600 times as large as the $250,000.00 cap on noneconomic damages existing in Texas for personal injury lawsuits. Surprisingly, the large amount of punitive damages in the Igen case isn’t a rarity: In 1997, the Rand Group found that punitive damages are awarded four times as often in financial injury cases than in personal injury cases.

It’s not hard to imagine the same executives at Igen, who praised the $404 million dollar award, criticizing “runaway juries” if they were ordered to pay even $4 million dollars to someone paralyzed by their products.

One of the founding principles of our justice system is the belief that human life is infinitely more valuable than human property; it’s why you can’t simply shoot someone that’s trying to steal your car. This principle is subverted by any tort reform bill that holds companies accountable for hundreds of millions of dollars for theft of intellectual property, but only holds those same companies accountable for hundreds of thousands of dollars if their products disable or kill a consumer.

So why, then, don’t big businesses want tort reform that insulates them from enormous jury verdicts in financial injury cases? We’ll use another hypothetical scenario with Igen and Roche. $101 million of the Igen verdict was for economic damages – the actual monetary loss of Igen. Such an award creates a reasonable assumption that Roche must have made close to $100 million dollars from Igen’s patents. So, what would the deterrent be of a maximum award of $250,000.00 to a company that made $100 million dollars? Insignificant.

The question then becomes this: If businesses need multimillion dollar jury verdicts to deter their competitors from stealing their intellectual property, why don’t consumers need multimillion dollar jury verdicts to deter businesses from knowingly selling harmful, or even fatal products?