A Spotter’s Guide to Tort Reformers

Justinian Lane

A Spotter’s Guide to Tort Reformers

Just about anyone who knows me knows I have a passion for protecting the justice system from being systematically dismantled for corporate gain. One sometimes inconvenient side effect of my passion is that I find a way to turn just about any subject into a debate on tort reform. Just the other night, for example, a class discussion over the merits of Stephen Covey turned into a heated exchange over Stella Liebeck’s lawsuit filed due to her disfigurement by a defective product. What had been a cordial conversation ended with one woman dropping an f-bomb and storming out of the room. I was shocked – her behavior was neither “principle-centered” nor an “effective habit.”

Within 30 seconds of the debate, I knew with certainty that she was a lost cause, and that nothing would ever change her mind about the civil justice system. Least of all, the facts. How could I tell so quickly? Because I know her type. You see, over the years, I’ve found that many supporters of tort reform fit neatly into specific categories. For your convenience and amusement, here is a spotter’s guide to three types of tort reformers you may encounter in the wild.

Bitter Blue Collar Worker

The Bitter Blue Collar Worker is a man or woman who is solidly middle class. He or she has worked hard to get where they are in life, and are justifiably proud of their accomplishments. They never shy away from hard work, detest laziness, and love their country. With apologies to H.L. Mencken, their only fault is that they’re desperately afraid that somewhere, someone is getting something for nothing. They hear anecdotes about our justice system, like “Remember that woman who got $2 million bucks for spilling a cup of coffee?” or, “Didja hear about that drunk guy who got a bajillion dollars when he wrecked his car?” and get downright angry at the mere thought that someone received a large sum of money for something as trivial as pain, suffering, or the loss of a loved one. Even talking about multimillion dollar jury verdicts outrages them so much that they’re unable to engage in productive debate. Why, I even had one such person angrily declare she would gladly give herself third-degree burns to her genitals in exchange for a million dollars. Any lengthy discussion with the Bitter Blue Collar Worker will likely end badly. Ironically, the Bitter Blue Collar Worker tends to be the worst kind of personal injury client to deal with, as their misperception of the justice system causes them to demand outrageous sums of money when tragedy finally strikes them.

Corporate Sock Puppet

The Corporate Sock Puppet is generally employed by a so-called “think tank” organization, a lobbying firm, or a Chamber of Commerce. They’re neither interested in nor capable of a serious discussion about the civil justice system. They prefer using sound-bite worthy phrases like “tort tax” and “lawsuit lotto.” All style and no substance, the Corporate Sock Puppet is little more than a actor or actress, paid to recite someone else’s script. One such example was Frank Cornelius, an insurance company lobbyist who was brutalized by the very laws he helped pass.

Shortsighted Defense Lawyer

Once upon a time, Texas had a robust workers’ compensation system that fairly compensated workers for on-the-job injuries. As a result of the strength of the system, both plaintiffs’ and defense firms were able to build lucrative workers’ compensation law practices. In the mid-nineties, the insurance industry suffered another downturn, and in turn raised their rates. Texas employers were particularly hurt by these rate increases, and for a time, Texas had some of the highest workers’ compensation premiums in the country. Texas insurers used the increase in premiums to fund an all-out assault on the workers’ compensation system. Some of their foot soldiers in this battle were the same attorneys they hired to contest fraudulent workers’ compensation claims. The defense lawyers got their way, and the Texas workers’ compensation system was “reformed” in much the same way Dresden was “reformed” by the Allies during World War II. For a short time, the defense bar celebrated their “victory.” But then reality set in – they had swung the pendulum so far in favor of employers, that many injured workers found it difficult to find an attorney to contest their legitimate claims. Without contested claims, these defense lawyers saw their once-lucrative workers’ compensation business dramatically shrink. In the end, they learned the hard way that the insurance industry looks out only for the insurance industry, and sees defense lawyers not as friends to be embraced, but as expenses to be eliminated.

While this guide is more than a little tongue-in-cheek, it's also intended to point out that not everyone who lobbies for "reforming" the justice system does so with good intentions. Some do it out of jealousy, some do it out of greed, and others do it simply because they're paid to. If you've ever visited my site, Corpreform.com, you'll know that I fight to preserve our unique civil justice system because I strongly believe that if the Colt 45 was "the great equalizer" in the 19th century, the civil justice system is the great equalizer in the 21st. For that reason, I hope you'll join with me in my fight to preserve the only weapon that the poor and the powerless can use to hold the rich and the powerful accountable for their actions.

Posted at 10:37 AM, Sep 20, 2006 in Civil Justice | Permalink | Comments (8) | TrackBack (0)

Comments

Here we go again:

"due to her disfigurement by a defective product."

The entire central argument against the Liebeck case is that the product is NOT defective. This is quite apparent, as the tmperature of coffee purchased from any major vendor today (Starbucks, etc) will be almost exactly the same (and sometimes HOTTER) than the coffee in the Liebeck case. In fact, a large number of coffee drinkrs would call their product defective if it was not hot ENOUGH.

Also, I would likely fall into your "Bitter Blue Collar Worker" category, but I DON'T gt angry about large judgements simply because they are large.

What I get angry about are large judgements for NOTHING, as I know that money comes from somewhere, and, in the end, it comes from me, in terms of higher prices for goods and services, or just plain unavailability of certain goods and services. Or, even worse, the knowledge that the law that inflicted the injustice in question could just as easily inflict that injustice on me.

Defendent A is accused of defrauding Plaintiff B of $1 million dollars. The outcome of that suit should be completely independent of who A and B actually are - it will never come to that, but I would like a system that is a better approximation than the one we have now.

Also, the outcome of that suit should depend on whether A DEEFRAUDED B, not whether or not B lost a lot of money. The Liebeck case is a good example of this. Ms. Liebeck did indeed suffer horrendous injury, but that's not what matters: what matters is whose AT FAULT for that injury. She could have purchased that coffee at ANY decent coffee supplier (even today), and the results would have been the same, because that's how hot coffee is supposed to be. (I worked food service, and my manager once raked someone over the coals because the coffee was too cold, and 190 F is the temprature he quoted as the CORRECT temperature!) She was injured because she SPILLED IT ON HERSELF. She could have done the same thing with coffee made at home (on a higher end coffee maker, as better home machines ALSO achieve that tmprature) or with water she boiled on the stove. And yes, people actually have been shown to be willing to injure themselves for money - that's one reason Worker's Compensation is capped (long-term) at 66% of salary (seriously - go do some research on it).

"EVIL" corporations ara not bottomless sources of money that should just pay everyone with an injury, NOR are they saints who never do anything wrong or caus any injury. Either assumption leads to injustice.

And our system currently produces PLENTY of injustice, both in terms of making innocent parties pay AND in terms of letting guilty parties not pay. It so happens that innocent parties having to pay is usually what gets more attention (large dollar figures being paid out have a tendncy to do that), but BOTH of those injustices require reform!

For a refutation of the point about workers compensation please see the Center for Justice and Democracy report.

http://www.centerjd.org/press/release/060920.htmhttp://www.centerjd.org/press/release/060920.htm

also quickly in NY the absolute maximum payout is $400 a week for salray compensation - hardly worth permanently injuring yourself for.

Deoxy, with respect the Liebeck case, I have a couple of points. First, you say that her coffee was not defective. What is coffee sold for? To drink, for human consumption. The manager of that particular McDonald's testified that Liebeck was served coffee that was "unfit for human consumption." In other words, the manager testified the coffee was defective.

Now, I don't know about you, but if I'm on a jury of a product liability case and the manufacturer admits the product was defective, I'm going to find for the plaintiff. The only way his admission could have been more powerful is if it would have been prefaced by a cry of "You can't handle the truth!"

Second, many legal commentators have listed dozens of reasons why the case should have been thrown out via summary judgment. Ted at Overlawyered, for example, appears like The Great Gazoo to enlighten the "dum-dums" in just about any Internet thread in which someone dares to mention her case.

Let's just say that you and Ted are right, and the judge failed to follow the law. If her case was decided contrary to existing law, why do we need to change the law? By your own admission, had the law been followed, Liebeck's case would have been thrown out - which is what you say should have happened.

Even the statement that her case "was decided improperly" affirms the fact that the very laws you argue need to be "reformed" already do what you say they should. Thus, changes to the existing laws are unnecessary.

Unquestionably, judges will from time to time fail to follow the law. When they do, don't blame the law - blame the judge.

"Center for Justice and Democracy"

I hate to resort to ad hominem, but I simply won't waste any more of my life on their dishonest BS, so I won't take the time to even read it. I could actually be wrong on this particular report, I admit, but it would be a first when dealing with them.

As to my knowldge of Workers' Comp, let me just say that I have some significant exposure to WC in practice, and no, it's generally not that bad at all. The 66% cap may vary by state (as that was from memory from several years ago).

As to the "$400 a week" in new york thing, um, I find that to be quite simply unbelivably low, as that amounts to a full time job at $10 an hour, which is fairly poor pay for ANYONE in that part of the world. Do you at least have a link for that?

I agree that 400 is very low. That's just $20,800 a year as a salary, regardless of how much you made before your injury.

link and excerpt below:

Cash benefits are not paid for the first seven days of the disability, unless it extends beyond fourteen days. In that case, the worker may receive cash benefits from the first work day off the job. Necessary medical care is provided no matter how short or how long the length of the disability.

Claimants who are totally or partially disabled and unable to work for more than seven days receive cash benefits. The amount that a worker receives is based on his/her average weekly wage for the previous year. The following formula is used to calculate benefits: 2/3 x average weekly wage x % of disability = weekly benefit . The weekly benefit cannot exceed the following maximums, however, which are based on the date of accident:
Maximum Weekly Benefits by Date of Accident and Total vs. Partial Classification Date of Accident Weekly Maximum
Total Disability Weekly Maximum
Partial Disability
July 1, 1992 and after $400 $400
July 1, 1991 - June 30, 1992 $350 $350
July 1, 1990 - June 30, 1991 $340 $280
July 1, 1985 - June 30, 1990 $300 $150

Note: The benefit rate a claimant receives (determined by his/her date of injury) does not increase if new maximum benefits are adopted into law.

see link below

http://www.wcb.state.ny.us/content/main/onthejob/CashBenefits.jsp

Posted by: Cyrus Dugger | September 20, 2006 05:01 PM

Hmm, that is attrociously low.

You did also neglect to mention that someone who is disabled is also elegible for Social security (which can be fairly significant, as I have a friend on it), but that still could leave the partially disabled person in the lurch a bit.

Surprisingly (considering general political leanings), I think New York is quite on the low end, here. I'll try to check some other states, if I get a chance.

Hi Deoxy,

I would also suggest researching how long it takes to get social security benefits, especially if you're a Ground Zero worker.

The Ground Zero worker at the press release of the most recent Mt Sinai health study of 9/11 responders said that not only had he struggled to get workers compensation, but he still 5 years after 9/11 had not been able to get social security.

If you find info on the application process for social security - let us all know.

My preliminary investigation, and coversation with a specialist attorney indicates that it is very very hard to navigate, especially without the assistance of a lawyer.

I await your findings, but despite your apparent disinterest in the Center for Justice and Democracy, there may be some more for you to learn about workers compensation from them.

Given that they just released a report on it, you could save yourself a lot of trouble by just reading it.

http://www.centerjd.org/