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September 13th, 2003

Evading Justice

Today I must go to the polls to vote in one of those odd "constitutional amendment" elections. Only the most die-hard show up to vote at these, and I am not a die-hard about voting in by-elections. But an ox is being needlessly gored in this one, and I am going to go and throw a pointless vote in dissent.

Proposition 12 is the latest "big money and lobbyists" version of "tort reform". It's being marketed as a way to "stop frivolous lawsuits against doctors", but in fact, what it does is authorize the legislature to cap non-economic awards for meritorious lawsuits against doctors, as well as a host of other industries.

I favor many forms of tort reform, especially when they are procedural reforms aimed a keeping both plaintiff and defense lawyers from spending too much time in routine lawsuits on expensive and time-consuming discovery of documents and depositions of witnesses. But the notion that somehow people who are genuinely injured should be limited in how much they should receive in pain and suffering as a deterrent to lawsuits by uninjured people is just beyond me.

I work the defense side about as often as the plaintiff side, and I usually work on cases in which the terms "plaintiff" and "defense" don't have the "personal injury" stereotype they have in tort cases.
In my experience, when somebody is truly negligent, and causes an injury, the injured person can experience a lifetime of pain. Now they want to have a proposition that legislators in Austin in 2002 and 2003 are smarter than juries that hear all the evidence in figuring out how much that could equal. I'm sorry, but as imperfect as juries are, lobbyist-dominated legislators don't strike me as key arbiters of this issue, either. I prefer a system in which juries have the initial discretion, and judges have more discretion than in the current system to cut back awards.

So I've got to find the polling place to vote against Proposition 12, because I imagine that courts are for more than letting banks collect debts. I believe that when people hurt other people, the injured should be compensated for their pain.

Of course, the medical industry argues that medical malpractice insurance premiums have gone way up. But they blame plaintiff lawyers, and not the fact that rampant "cash flow underwriting" (that is, selling policies too cheap to get investment dollars) plagued the companies that underwrote this line, making them unsuccessful. In fact, in California, when a cap was passed on medical malpractice awards, premiums did not go down.

I do believe in many procedural reforms in our tort system. Cases should be sorted so that small cases get quick trials, so that large cases with little merit are quickly weeded out, and so that the expense and delay of all cases is reduced. But merely because one is a doctor or an industrialist or a maker of products, I don't think there should be a "free pass" in the form of a damages cap when damage is done.

The irony, of course, is that in north Texas, juries are generally very stingy on damages. The only "tort crisis" we really have here is that juries will often award rather less than the injured person should, in my opinion, receive. But that's what juries are for. I'm fine with that.

But it's a curious thing--ads saying "stop lawsuit abuse" while promoting a bill that caps damages in meritorious, non-abusive lawsuits.

In other news, I must also tackle the "big issues" in this election--should the legislature be able to override local choices so that wineries are able to sell in our many Texas "dry" (i.e., no-alcohol) counties? All the rural counties surrounding our Lubbock wine country are no doubt inspired by this one. Another proposition authorizes reverse mortgages, which is fine by me, but which requires a constitutional change because the early Texas pioneers didn't want lenders messing with their homesteads. Should we ban the legislature from creating "rural fire prevention districts"? I will be pondering at least 3 minutes on this weighty issue.

Sometimes I think that we live in a culture in which nobody takes responsibility. The corporate miscreants actually try in some of these recent cases to pretend that their accountants blessed the frauds they committed. Our securities markets were staggered by their manipulation, but nothing, of course, is "their fault". We trust juries to issue death sentences (which I oppose, by the way), but we can't trust them to value the pain and suffering in a garden variety case in which a doctor left a scalpel in a patient. We watch our defense secretary each month come up with new creative reasons why our federal government had no plan whatsoever for occupation of a large country and transition of that country back to its people at the time we launched a war effort which succeeded with breathtaking swiftness. A child could have seen this day coming. But the party in power keeps wrapping itself in the flag.
I guess that I'm tired of a culture in which the poor person gets "justice" and the rich person gets a "free pass". I'm tired of the notion that the aspersion is more important than the deed. I'm tired of fathers who don't pay child support, murdering teens, and people who worry more about merging church and state than about people being killed over sexual orientation.

Let's just instead mark down me down as "no" on Proposition 12, and tackle the rest of the culture on another day.