We Interrupt This Weblog to Bring You an Article About Tort Reform

I know, I know.   You spend time gobs of time reading post after post and all you get is another lousy article about tort reform?  Where's the sex?  The violence?  The news about Johnnie Cochran?

Look, I'm sorry.  But I must insist you spend a little time reading The Myth of America's 'Lawsuit Crisis', by Stephanie Mencimer.  It's filled with astonishing revelations--for example, details about the way the tort reform movement plays fast and loose with the facts, is funded by big business, and uses people in the media as its dupes.  Who needs sex and violence when you've got that?

You disagree?  Maybe you're one of those people who's bored to learn that big business has been trying for fifty years to garner political support to place limits on your rights to hold corporate wrongdoers accountable.  If so, I can't help you.  On the other hand, this is a full-service weblog.  So I've got something for you too: news about the new Bush-Cheney commercial, titled "Tort Reform."  Have at it!

Comments

[UCL]

Tort reform is a bunch of socialist, anti-free market crap.

[Dylan]

Tell me more about what in your conception of "free market" tort reform violates.

[Dylan]

And in light of our recent exchanges, let me add that it's a serious request. I'm puzzled, but willing to listen. Examples of specific policies and especially what market functions you believe they effect would be helpful.

[Mojo]

Most informative post I've read all week. Thanks. I've always been suspicious of claims that rampant lawsuits are destroying America since that doesn't seem to match the world I see around me. Sure, Jarts are off the market and the number of "No Irish Need Apply" signs is way down, but I don't see that as necessarily a bad thing. It never ceases to amaze me that the people who repeat the "America is the greatest country in the world" mantra over and over are the same ones who think everything about the country needs to be fixed.

[Ted]

As opposed to the way ATLA uses Stephanie Mencimer as a dupe, as she uncritically repeats the ATLA lie that the Volunteer Protection Act protects Ryan Warner from suit when it does no such thing. Mencimer also omits that Warner had to hire a lawyer when he was subpoenaed in the underlying suit. Again, the VPA doesn't help him.

Mencimer also appears to take the position that any news organization that has ever been sued is disqualified from commenting critically on the legal system. Convenient, that.

The idea that the television media is part of a tort reform conspiracy is laughable; the ratio of tort reform stories to stories consisting almost entirely of uncritical repetition of press releases from plaintiffs' lawyers has to be under 1 to 10. It's not like tort reform is the only topic where the popular media overly focuses on anecdotal evidence rather than deep analysis.

The tort tax is very real.

[Evan]

Ted: I think it's important to consider the source of any information about tort reform. For example, in her article, Stephanie Mencimer writes about the Manhattan Institute, to which Overlawyered.com links prominently on its weblog, and which sponsors the affiliated PointofLaw.com website. About the Manhattan Institute, Mencimer writes--

Over the [1990s], the institute produced a blizzard of reports, conferences, op-eds, books, and mailings all decrying the "litigation explosion" and greedy trial lawyers. They cultivated sympathetic and influential journalists such as "20/20"'s John Stossel, then-New Republic editor Michael Kinsley, and TNR columnist Fred Barnes, and more recently, Stuart Taylor, who frequently cites their work in his columns for Newsweek, The National Journal, and The Atlantic Monthly. The "research" conducted by the institute usually purported to show how lawsuits impact the average consumer's daily life by raising the cost of groceries or auto insurance or driving their favorite physicians out of business. But some of the institute's "scholars" played a little fast and loose with the facts.

As for Stephanie Mencimer, who you say is a dupe for ATLA, I know her only as a journalist. Does she really have connections to ATLA or to any other groups of plaintiffs' lawyers that would make her biased in favor of ATLA-supported views? That would be interesting to know, if you have any information.

[Evan]

Here's what the Washington Monthly says about Stephanie Mencimer:

Stephanie Mencimer is a contributing editor of The Washington Monthly. Previously she has worked as a senior writer at the Washington City Paper, an investigative reporter for The Washington Post, and a staff writer for Legal Times. A native of Ogden, Utah and a graduate of the University of Oregon school of journalism, Mencimer is the recipient of the 2000 Harry Chapin Media Award for reporting on hunger and poverty, and has won numerous awards for feature writing from the Society of Professional Journalists.

[Ted]

So are you claiming that Mencimer did not speak to anyone from or rely upon any information from ATLA and simply came to an identical set of incorrect arguments that were presented in ATLA press releases? Or are you claiming that Mencimer performed skeptical analysis of the ATLA materials and simply chose not to report the refutation of it? If it's the latter, I apologize for calling Mencimer a dupe, rather than a shill.

I've never received a dime from the Manhattan Institute. (They did buy me a salad the one time I visited their offices, but in the words of Marge Simpson, "You don't win friends with salad." If you add up my paypal contributions to OL in the years before I joined the blog, I'm certainly in the red on the whole thing.) I doubt Michael Kinsley has, either, but you called him a dupe.

[Martin]

I have a number of somewhat comments on this discussion...
One of the biggest problems with this debate is that it is almost always a debate based on anecdotes rather than real data. One can find many examples of litigation excesses as well as many examples of tort reform hyperbole. People use and misuse the available data and there is often no real understanding of the costs to the system and how litigation can effect not just current prices or services, but the availability of future products.

These costs haven't been quantified fully. Most of the empirical studies tell only partial stories-some doctors may leave their practices, some firms may stop production, or the problem in this or that area isn't so bad. I think the biggest problem (again just anecdotal) is that there is uncertainty regarding the litigation outcome. This may cause insurance market failures (and major league complaints against insurers). Insurers are in the business of taking quantifiable risks--if they can't quantify the risk, then there is no insurance. This is likely to be the biggest single piece of evidence of some need for reform: Non-profit insurers are not selling (or are reluctant to sell) insurance.

The tort tax paper that Ted cites to is a first attempt to get at some of the bigger picture items although it is just a back of the envelope calculation. (I had discussions with the author when he was writing it.)

Finally, I think we can say that litigation reform is a real need. Sen. Edwards admitted during the debate last night that there was a malpractice problem (I am paraphrasing) and that he and Sen. Kerry had a plan. I think the battle is almost over when the "other side" admits that there is a problem.

[Prof. Yabut]

On tv media and tort reform: A pro-tort-reform conspiracy seems highly dubious to me. I have found it virtually impossible to get local television stations to do any stories that put p/i-tort lawyers in a bad light [e.g., concerning the standard contingency fee and the client's right to negotiate the percentage]. I have always chalked that up to the fact that such lawyers are always (along with car dealerships) among the very biggest purchasers of ad space during news programming, and after midnight.

[Marie]

With all due respect to Prof. Yabut (and not only do I have the highest respect for you, I totally adore you), the tort reformers appear to be the big spenders in my neck of the woods.

If you came to the capital of Illinois, you would see almost weekly how we're diluged with so-called TV news reports, whereby the local anchors and reporters uncritically repeat the tort reformers' mantra. I haven't actually kept a tally, but these news reports seem to come with a lot more frequency when the state legislature is in session. So far, I've yet to see the TV news present the opposite side.

I'm a little surprised you haven't noticed something similar to this in your neck of the woods.

[Prof. Yabut]

Thank you for the adoration, Marie. You must be confusing me with some other dashing webEditor.

Upstate New York is apparently only judicial limbo, rather than a hell hole or paradise. So, I guess we have been spared the tales -- just as we've avoided the tidal wave of presidential election advertising. I'll keep my myopic eyes squinting for the tort reform propaganda machine and its pit crew.

[Evan]

Concerning this post and its comments, Stephanie Mencimer e-mailed me the following comment and gave me permission to post it:

In my own defense, I get ten cents a word for the story I wrote in the Washington Monthly, which has no ties or financial backing from trial lawyers. I have never even taken a Diet Coke from a trial lawyer, much less their money. My views are my own.

As for the Volunteer Protection Act, Olson and Frank are splitting hairs with regards to Ryan Warner and the Arizona softball tournament. Just read the act and you'll see that it does indeed immunize volunteers of nonprofit organizations from being personally liable for negligence in a civil suit. Volunteers can still be liable for gross negligence--say if Warner had intentionally whacked a player over the head with a baseball bat and killed him--but no one ever alleged that Warner had engaged in gross negligence. To be sure, the volunteer protection act doesn't prevent any joe from going down to the courthouse and paying $35 and suing anyone he wants, volunteer or not. Nor should it, as it would be impossible to create a law that would fairly weed out good suits from bad ones just in the initial filing process.

The Volunteer Protection Act does the next best thing, which is to protect Warner from having to pay damages in such a suit, and also would likely prevent it from going forward. But Warner was never even named in the suit. Even if he had been, he was covered by the insurance policy purchased by the softball tournament organizer as required by the city, and would neither have had to pay for his own lawyer nor for any damages in the unlikely event that a suit were able to get around the volunteer protection act. I didn't ask him whether he personally paid for the lawyer he retained for his deposition, but I would be surprised if he did.

I'm also surprised that Frank suggests that invoking the Volunteer Protection Act makes me a shill for the trial lawyers. The trial lawyers hate that law and actively opposed its passage. In addition, the members of Congress who sponsored the act would be surprised to find such criticism of their work, given that they are some of the most conservative members around, including then-Sen. John Ashcroft, Sen. Rick Santorum, Sen. Mitch McConnell, then-Sens. Phil Graham and Spencer Abraham. These anti-lawsuit, anti-trial lawyer elected officials were mighty pleased with the bill they passed, and even more pleased when Bill Clinton bucked the trial lawyers and signed it.

About Mencimer's supposed use of ATLA materials, she wrote: "I should add that I did not get an ATLA press release and quote from it from my story. I read the trial lawyers' criticism of Taylor's story from a link of Ted's website! Taylor referenced it in his response..."

[Ted]

Mencimer's response addresses a straw man. I have never claimed that she receives money from the plaintiffs' lobby. I claimed that she uncritically repeats false arguments made by the plaintiffs' lobby, and that makes her, at best, no better than the reporters she criticizes in her article--either because she blindly parrots or because she deliberately misleads.

As Schaeffer and any first-year law student is well aware, one need not allege that Warner committed an intentional tort to sue him for gross negligence (much less for "a conscious, flagrant indifference", another loophole in the VPA), which is considerably further down the mens rea scale. Perhaps Mencimer thinks that "gross negligence" only applies to the affirmative action of beating someone on the head with a baseball bat and similar torts, but if her statement was one of ignorance, rather than disingenuousness, I would have been happy to disabuse her of this notion--she certainly didn't contact me in researching her article criticizing Taylor for not contacting enough pro-plaintiff sources. Perhaps that's a lot of research to conduct for an article that she's only going to get paid $500 for, but then Mencimer should either practice what she preaches and restrict her writing to subjects where she can fairly evaluate the claims, or, at a minimum, be easier on reporters whose own cursory reports at least somewhat more accurate.

Mencimer attacks another straw man by pretending that I'm claiming that the incremental reforms of the Volunteer Protection Act were somehow a plot by the ATLA. (Clever how she singles out Santorum and Gramm and Ashcroft while omitting the fact that Sen. Leahy rewrote the law, and it passed the House 390-35 and the Senate with unanimous consent. Similarly clever how she omits former George McGovern's and Paul Simon's name from Common Good's advisory board so that it appears to be a one-wing group.)

But I don't dispute that ATLA opposed the VPA, and never claimed otherwise. That doesn't mean that ATLA didn't succeed in watering down the bill such that it doesn't provide real protection to Warner, and that ATLA's invocation of the VPA isn't utterly disingenuous--volunteers in Warner's position get sued all the time, and face real risk of bankrupting liability expense, even though they're immune to claims of simple negligence in certain limited circumstances.

Mencimer's acknowledgement that she found the ATLA statement through a link on Overlawyered demonstrates a significant difference between the Manhattan Institute's scholars that she unfairly maligns and Joanne Doroshow--whose organization does receive money from the plaintiffs' bar, though one would think she's as selfless as can be if one relied solely on Mencimer's reporting.

[UCL]

Dylan asked me to elaborate on my points, and I will briefly do so.

"Tort reform" is essentially concerned with two issues. First, tort reformers believe the amount in money damages a jury of American citizens may award after hearing the evidence during a trial should be regulated by the government. Second, tort reformers believe the amount of money an attorney contracts for with his client should be regulated by the government. Claiming these these goals are in any way consistent with principles of free market economics, true conservatism, or libertarianism is about as credible as claiming that true conservativism is consistent with the policies of George W. Bush. Of course, we see that the latter is done so frequently as to almost have been accepted as universal truth, so I expect absolutely nothing different as to the former.

[Evan]

Ted: Not only do I know what all first-year law students know, but I know much more. Haven't I mentioned on this weblog that I was the managing editor of the law review during my third year? In certain circles, in fact, I am still revered as a consummate know-it-all.

Now, as for your contention that Mencimer "certainly didn't contact me in researching her article criticizing Taylor for not contacting enough pro-plaintiff sources"-- for what it's worth, Mencimer did contact Walter Olson. As she wrote me, "I would have happily included comments from him in my article but he refused to be interviewed on the subject, even though he allowed Stuart Taylor to post a long response on overlawyered.com to criticism from the trial lawyers over his Newsweek article."

Since it's turning out that you all have already been introduced--that is, you, Olson and Mencimer--there's really no need for me to be in the loop anymore as the conduit of information. As always, however, all of you are more than welcome to converse in the comment section of this weblog. In fact, you're welcome to kick it up a notch!

[Chris]

Let me tell all of you about "tort reformers," on my end, in Maryland. As a 40 plus yr old widow, married to my childhood friend whom I married 16 yrs ago, when a massive explosion left him barely alive 10 yrs ago, when he died I did too. He did not die right away, rather he lingered on 5 long days hooked up to every machine known to mankind.

My court date is coming up very soon, as I've been waiting 6 1/2 years now with no peace whatsoever. That sort of thing happens when you love someone and then you have to watch them die. And while you're working on just "breathing alone," just to survive minute by minute without breaking down and yes, that stuff really does happen, big lawyers are sleeping overnight and overtime with the local legislatures (my lingo so pardon the cultural difference) to fix-up those tort laws mixed in with contributory negligence laws so huge corporations can go on w/their lives and big finances while they hope you don't linger on too much longer.

Now, I'm suppose to be buying into the fact that we just aren't worth anything. No, a big corp can spare a few bucks and not be burdened with sparing some lives. What's a life to safety features anyway, right? It's our fault for choicing to work at such a place. How dare we, the blue collared workers of America not born with silver opportunities in our mouths not make better of ourselves... sorry but without blue collared workers, white collared would have no where to go w/their investment earnings.

And insurance companies, soft money, legislatures, appeal judges - all working on the same legal team of over 1,000 plus and me, alone with just my one lawyer who's buying into the the "maybe's" that a jury will not feel any compassion for me, much less my poor late husband.

Sorry, but I'd much rather have him here, alive and grumbling at me for being up too late writing stuff on the internet that my enemies say no one will pay any attention too, especially other big lawyers, but I beg to differ. Because you see, even as I sit here, alone and having died many times myself inside, I still have hope that maybe, just maybe I can someday get through to just one of you big attorney's for tort reform out here and save a life and maybe a family from the same grief I feel still today.

You see, "tort reform" takes away my civil and god-given human liberties, my freedom to make a choice and gives big corporations the green light to do whatever they like. Law suits help to keep greedy money lovers at bay.

Don't you all think (at least) that it's a very sad world we live in when you must sue a big corporation, in order to get them to act like their care about another's life. I mean, really now.