Now that John Kerry has bellied up to the plaintiff’s bar and chosen tort attorney John Edwards for his running mate, and their party counts trial lawyers among its strongest and most generous supporters, it is high time to revisit tort reform. Tort law has become a form of drive-by legislation without legislators, only targets, a booming business with little oversight and less accountability. In self-defense insurers have institutionalized the paranoia it creates for nearly every business and everyone who owns a home or drives a car. This is a topic that will not die, because the abuses that raise it keep receiving fresh transfusions of cash and publicity.

And speaking of examples, we may as well immediately dispose of one commonly-heard defense of the present system, that the notorious, hot button examples that make the news are comparatively rare and often reversed on appeal. This may be true but would not be an acceptable justification for those wrongly convicted in criminal cases; why should it be in civil cases? It is not acceptable, of course, unless you happen to be a  lawyer like John Edwards, whose cut of the present tort lottery has let amass a fortune of some 70 million dollars.

I need not repeat the hot button, hot coffee examples we know all too well. However, one recent remark serves to highlight the basis for the problem. On the July 28, 2004 FrontPageMagazine.com, Lowell Ponte paraphrased ABC’s John Stossel: “…lawyers acknowledge that most doctors act expertly and responsibly, yet 76 percent of American obstetricians have been sued because, as one trial lawyer told Stossel, ‘that’s why they have insurance.’” This last irresistibly reminds one of what Willie Sutton was supposed to have said (but did not) when asked why he robbed banks: “because that's where the money is.” Insurance companies are where the money is.

Poor Willie Sutton. The most famous remark attributed to him was actually made about him by a reporter. The other, “You can't rob a bank on charm and personality,” is disproved by the person of John Edwards, so chock full of both that we may as well skip the election and put his image on some of our currency, perhaps the two-dollar bill once so popular at race tracks.

What to do, besides putting John Edwards’ portrait on the two-dollar bill? An exchange last year in the Weekly Standard nicely laid out both the problem, especially as it relates to medical malpractice, and many of the ideas for solving it. The exchange began with William Tucker's essay “Getting Fat on Torts” and continued with the letters about it in a later issue. Mr. Tucker focused on medical malpractice suits and suggested user fees to help support the legal system and discourage frivolous suits.  However, this would simply create another expense that ultimately the patients and the public would pay for, because lawyers would find some way to add the fee to their reimbursable expenses. Far worse, it would create yet another party with a financial interest in the drive-by legislation: the courts themselves.

In a subsequent letter, Barbara Harty-Golder recommended first that the suing lawyers be treated as the financially culpable co-plaintiffs that they are. This is a sound notion, because it involves an upfront commitment by BOTH sides to a risk of losing serious money. It does not require a judgment call by judges, who in states like Alabama are the recipients of trial lawyers’ campaign contributions, or other forms of self-policing that her second proposal does. Simply ordering self-discipline among lawyers, or any other group, and expecting it to happen is rather like King Canute’s commanding the waves be still (and Canute at least knew it was not going to work). As Harty-Golder pointed out, physicians now are subject to peer review, but this is hardly voluntary self-policing and results mostly from some prudent CYA by the hospitals AND the requirements of Medicare and other forms of medical insurance.

Similarly, one certain way to bring the lawyers to heel is for legal insurance to become widespread. Consider: Amendment VI to the Constitution guarantees us a right to legal representation, and the courts have ruled that taxpayers must pay for such counsel. Furthermore, thus far no judge has found lurking in a penumbra somewhere a corresponding right to health, health care, or health insurance. So why do so many believe that basic human rights include universal health insurance, but not universal legal insurance? First, the elderly are a large and influential bloc of voters, one narrowly focused on personal health. Second, lawyers are a small but influential bloc of donors, one narrowly focused on personal wealth.

To be sure, since the 60’s public and private medical insurances have greatly increased the incomes of physicians and nurses, but they -- and lawyers -- know that this gravy train is being derailed by a plethora of requirements and limits from the same source, insurances. (Perhaps to compensate and keep the incomes high, Medicare has been trying to limit the number of physicians.) Lawyers must know, too, that there are too many lawyers to demand the kind of income from legal insurance that physicians did from health insurance. So the lawyers see no advantage to universal legal insurance -- and the tight regulation that would go with it. When ten years ago Hillary Clinton and her merry band of lawyers were trying to socialize American medicine, I kept waiting for someone to counter with “LegaCare.” That would have shut them up.

Gerard R. Cleere's idea in another letter, of paying the punitive damages to an affected government agency, carried the same risk as Mr. Tucker's paying the courts: it creates still more parties with a financial interest in expanding both the frequency of litigation and amounts involved. For example, if the National Highway Safety Administration stood to gain billions in punitive damages, how trustworthy could be its testimony? I agree with Cleere’s remark that his notion would be “popular legislation in many states;” so would sticking up banks, if the banks were in another state. With megabucks involved, the disinterested third parties, if such creatures still exist, would no longer be disinterested. We have already seen grotesque examples of governmental bias, greed, and hypocrisy in the tobacco settlement and handgun suits; we need less of these in the system, not more.

And it is in class action cases, like the tobacco lawsuits, where one of the worst abuses occurs: the plaintiffs, those who supposedly suffered the damage, receive nothing or mere pittances, while the attorneys on both sides rake in enormous fees. (I once found myself a class member in a suit against a large oil company. My share in the settlement was thirty-four cents, not even enough for postage if I had wanted to write home about my windfall, which was nothing to write home about.)  The class members in such cases are not often real victims; they are legal abstractions to be manipulated, like Gogol’s dead souls, and the suits a sham to glom money from their targets. I suggest limiting attorney fees to some sliding percentage of the total award, or a multiple of the least amount paid a class member, whichever is less.

Among the usual suggestions for reform is the adoption of the British system, wherein the loser in a lawsuit pays the legal fees of the winner. Some of those who recommend this seem to do so for no reason other than that it is, well, British. (Too many of us presume, not always with reason, that the British are better at this whole law thing than are the Americans.) Whatever its merits, the British system would serve to prevent some wronged people from suing a well-heeled party like a corporation. Besides, just how are the opponent’s legal fees to be determined? Another suit? Perhaps the loser’s attorney should pay opposing counsel. That would be poetic justice.

Of course, it is the punitive, not actual, damages that raise the hackles and the stakes, and these include the legal fiction called triple-damages, which are nothing but a euphemism for a punitive fine, paid to the plaintiff, that is twice as much as his actual damage. Paying any sort of punitive damages to the plaintiff and his attorney is analogous to letting the victim of a mugging and his attorney take a few whacks at the perp with ball bats. To be sure, the notion has a certain visceral charm, but private vengeance is what we have been trying to get away from for the past thousand or so years. Punishment is punishment, and revenge is revenge, whether it is in a civil or a criminal matter.

Still, most of us agree that crime should be punished and injury recompensed. If punitive has any meaning other than enough-money-to-buy-San-Simeon- with-enough-left-over-to-run-for-the-Senate, then a crime, not a tort, has been committed. If, say, the blade from a Whatsis Lawn Mower flies off and kills the family pet, then instead of the company paying punitive damages, we should see the Whatsis CEO being perp-walked into a police station. But since in this country we cannot always appropriately punish vicious mass murderers, still less can we be confident of punishing a crooked manager, a careless designer or, horrors, a union worker on the assembly line who forgot to tighten the nut holding the mower blade.  

How, then, to punish the malefactors without the corruption of the current system and the usual suggested substitutes? Let us begin with an overdue reform: the confidentiality of settlements must be banned. Furthermore, the actual settlement amounts and medical problems must be publicly announced in the court docket, to include exactly how much the plaintiff’s lawyer received. After all, if the parties resort to a publicly-supported body to settle their disputes, then it should become a public record. There are two advantages: the multi-billion dollar figures seen in the media will be seen for what they often are, wild exaggerations of the final settlement, one reached by some rather tawdry horse trading. More important, it would prevent culpable individuals and companies from buying the plaintiff's silence, while other victims, kept in ignorance, accumulate. 

But this does not get to the heart of the problem. What would is to ensure that no one has an interest in receiving punitive damages. How? The loser will pay any actual damages to the plaintiff. However, under my suggested reform, all punitive damages will be paid to the court, which will convert them to crisp new $100 bills and then, with all due ceremony, burn them. With this simple ploy, the offender is punished; no one connected with the matter receives an undeserved windfall; and no new interests are created by the existence of all that money floating around. Why destroy the money? That is the only way to avoid the creation of a selfish interest, whether it be a court, a governmental agency, or some allegedly nonprofit organization. Besides, payouts of punitive damages are inherently inflationary, because they are most certainly not for goods produced or services rendered. If the amount of punitive damages awarded decreases drastically, then we shall know for certain what we have always suspected, that it was less punishment than piracy.

Talk about “popular legislation”: fight inflation AND stick to the ambulance chasers!

Terry Graves is a novelist and freelance essayist living near Steubenville, Ohio. His novel, Rain in Hell, concerns original sin without, he hopes, being yet another fruit of it.

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