Stephanie Mencimer
Affluence And Accidents
Cross-posted from The Tortellini
One reason that I find many of the major tort reform advocates and their attendant “intellectuals” a little bit arrogant is that they seem to think that they are immune from the random misfortune that leads to personal injury lawsuits. Not that trial lawyers can’t be a little full of themselves, but for a long time, I thought the leading lights of tort reform were just in denial about their potential need for the legal system, and that accidents were just that: random, and not dictated by class or privilege. But then I saw a story in the Washington Post recently that changed my mind.
A new study found a direct correlation between childhood IQ and rates of hospitalization for accidental injuries. The smarter the kids, the less likely they were to have serious accidents, a trend that continued through adulthood. Researchers offered several explanations, including that kids with lower IQs were more likely to drop out of school and end up in more dangerous and poorly paying jobs. Head injuries as a child also led to more accidents as an adult. Education mitigated the effects, so even dumb kids who got a decent education (our current president, perhaps?) were less likely to be injured.
The study made me think that maybe the tort reformers are right. They—and the billionaire CEOs they represent—don’t really need tort law. Most of them are overprivileged white guys who, I suspect, have never flipped a burger except maybe on their outdoor Viking kitchens. Their private schooling and Ivy League bona fides mean they don’t have to work in coal mines or put themselves in harm’s way as cops or soldiers. Affluence means they don’t have to drive crappy American cars that are deadly in accidents or rely on bad doctors and risk malpractice—all the things that land people in court. The odds are consistently in their favor. Tort law, then, is for the rest of us peons, just the folks that the “reform” movement wants to shut out of the justice system…
(read that post’s comments after the break)
Comments
Hello, Stephanie. Visiting from over at Overlawyered.
http://www.overlawyered.com/2007/01/affluence_and_accidents_and_ad.html#more
Who is Erik Wemple of California?
I have a couple of questions for you. I assume you believe in the benefits of torts.
Why does the lawyer deprive himself of the benefits of torts by placing the obstacle of privity in between him and the adverse third party?
Will you support legislation that 1) makes it mandatory to carry legal malpractice insurance large enough to compensate all victims of lawyer carelessness, as a condition to licensure or its renewal? 2) removes all self-dealt obstacles to a legal malpractice claim by anyone injured by lawyer carelessness, 3) allows juries to regulate licensed lawyers in torts including careless judges (do you believe juries can judge the lawyer's meeting professional standards of due care?), 4) that does not shut the courthouse door in the faces of the victims of lawyer carelessness, in violation of many state constitutions giving access to the court to all, with no exceptions for the victims of lawyer carelessness?
If you cannot support such a statute, the Fairness to the Victims of the Careless Lawyer Act (The FVCLA), then please, explain why not.
Posted by: Supremacy Claus | January 16, 2007 at 10:21 PM
Supremacy,
For the same reason that the doctor who performs open heart surgery on a mob boss is not liable for someone who is killed by him al a later date. does this sound too unsophisticated for you?
then, for the same reason a chemistry teacher is not responsible for the inventor of a hallucingenic drug, or even a weapon of mass destruction.
the lawyer enforces the law, as established by the legislature, as established by the people. Are there "bad" lawyers???
Yes, just like there are bad priests, and teachers. Should we abolish religion? Nope, just hold the wrong doers accountable.
Should we abolish education? Nope, just hold the wrong doers accountable.
Should we abolish corporations, and business? Should we resort to joining nomadic tribes to follow vegitation and possibly hunting? Nope, just hold them accountable.
You're smarter than anyone else on these blogs (apparently,) why don't you do it?
Posted by: John | January 16, 2007 at 10:33 PM
John: Don't go off the deep end on us. I love the lawyer, enough to correct the lawyer. The rule of law is an essential utility product, no less absolutely needed than water and electricity. I know that.
When a careless lawyer has caused an injury to an innocent adverse third party, when a careless lawyer has violated the expressly enumerated duties to the adverse third party in the Rules of Conduct, of Evidence, of Civil and Criminal Procedure, thus committing a per se tort, why is a jury not good enough to judge if the lawyer has deviated from professional standards of due care, as attested by an expert, in the lawyer's own subspecialty?
Why can't a jury judge a lawyer in a torts civil claim? Why does a lawyer need a privity obstacle, that no one else has? Why are only lawyers on the bench good enough to regulate the careless lawyer injuring an adverse third party?
When you are finished answering that simple question on the jury, explain how the immunity of the lawyer from legal malpractice claims by the adverse third party not violate the access to the court sections of many state constitutions, and the procedural due process rights of the injured defendant who wants to become a plaintiff in a lawyer legal malpractice suit. Explain the constitutionality of the privity obstacle to legal malpractice claims of the adverse third party.
Posted by: Supremacy Claus | January 16, 2007 at 11:22 PM
I suppose it would be just as valid if I said that the only people who support the current tort system are a bunch of self-centered lazy whiners and Marxists looking to milk the system for all it's worth, looking to make millions on someone else's efforts by turning every imagined slight against them into million of $$ in settlements and jury awards?
Would that be correct too?
Oh by the way, I'm not an overpriveleged white guy. I am white, but I'm a guy who joined the army because I couldn't find a job anywhere else and worked as a pizza cook and delivery boy to get through college. Have a nice day.
Posted by: JHS | January 16, 2007 at 11:41 PM
For some reason I think you (the author), would be the 89th sig on the duke 88 roster!
Been filmed on the streets banging pots!
Supported Nifong all the way!
Fark the evidence! They for sure committed some crime, git a rope!
***********
As to tort reform, such is easy, take the profit, no the GROSS profits out of the attorneys hands, and you will see reasonable tort reform! Continue to allow the John Edwards's type attorneys to run rough shod over the nations economy and this nations will spiral like, well like it's doing now!
Posted by: TC | January 17, 2007 at 05:56 AM
TC - If you think tort litigation is destroying the US economy, I've got a bridge I'd like to sell you.
Posted by: seth | January 17, 2007 at 09:02 AM
Posted at 9:59 AM, Jan 17, 2007 in Permalink | Comments (2) | TrackBack (0)
Comments
I.Q. and accidents:
It's not correlation, low i.q. is the ultimate cause!
It's utterly and totally mean, but that is what "The Darwin Awards" is all about; and you can find it in the comedy section at your bookstore.
Posted by: Emma | January 17, 2007 04:43 PM
Lawyer question.
What does "preponderance of the evidence" mean?
People with ADHD have twice the accident rate.
The plaintiff has ADHD. What does that mean to 1) the weighing of the evidence by the jury; 2) any discount of the verdict in contributory or comparative negligence regimes?
Posted by: Supremacy Claus | January 18, 2007 08:14 AM