False 'facts' in tort reform campaign pose danger to all lawyers

Issue November 2004

Although I am hesitant to quote President George Bush, I will. He said several times in the first debate that it is hard being president. That is a rather obvious statement, which I do not believe even his opponent would challenge.

Over the last several years, and particularly during this election cycle, it has been hard to be a lawyer - especially a trial lawyer. Those in our profession who represent injured people have been blamed for the health care crisis, for the current shortage of the flu shot, for the cost of insurance, for the outsourcing of jobs, for the bad economy and for just about every other domestic and economic problem in the United States. To date, lawyers have not been blamed for terrorism, for the attack on Sept. 11 or for the war in Iraq. I must admit that at times I held my breath during the debate on foreign policy, waiting for lawyers to be brought into the discussion on those issues as well.

Since Ronald Reagan was president, lawyers have been a target. Facts have not played much of a role in the accusations made against lawyers. Here are a few facts:

•  American businesses file four times as many lawsuits as do individuals represented by trial attorneys. In Mississippi, a state the U. S. Chamber of Commerce has labeled a "judicial hell hole," businesses were 5.8 times more likely to file suit than were individuals. There were 45,891 business lawsuits filed in 2001 compared to 7,959 individual lawsuits. Tort filings in state courts have declined by 9 percent since 1992, according to the National Center for State Courts. The cases that are on the rise are contract cases - generally businesses suing businesses. Contract filings have increased by 21 percent since 1995.

•  John Ashcroft's Justice Department released the following, based on its examination of 2001 statistics, the most recent data available: the number of civil trials in the nation's 75 largest counties dropped by 47 percent from 1992 to 2001. In jury trials in which the plaintiff was successful, the median award shrank from $65,000 in 1992 to $37,000 in 2001. Winning plaintiffs won punitive damages in only 6 percent of trials - with the median punitive damage award $50,000.

•  Contrary to what insurance lobbyists may be telling lawmakers, data shows that insurance company profits are booming and insurance analysts are privately raving about it. According to the Sept. 15, 2003, issue of Business Insurance, 14 property/casualty insurers saw a 35.9 percent increase in net income, to $7.5 billion, in the first half of 2003.

•  Tort reform will not lower insurance rates. St. Paul Fire and Marine Insurance Company found a total effect of about 1 percent savings from Florida's 1986 tort reforms, but conceded that even this 1 percent might be inflated. St. Paul concluded that, "the non-economic cap of $450,000, joint and several liability on the non-economic damages, and mandatory structured settlements on losses above $250,000 will produce little or no savings to the tort system as it pertains to medical malpractice." Caps imposed in California's 1975 medical malpractice reform law, known as MICRA, also have failed to reduce medical malpractice premiums. The assistant vice president of SCPIE, a major medical malpractice insurer in California, stated, "While MICRA was the legislature's attempt at remedying the medical malpractice crisis in California in 1978, it did not substantially reduce the relative risk of medical malpractice insurance in California."

•  Businesses are not crippled by litigation costs. A 1996 survey by Ernst and Young and the Risk and Insurance Management Society found that liability costs have actually declined. The study found that companies paid only $5.20 in liability costs for every $1,000 in revenue and that these costs - which include property damage, worker's compensation, and lawsuit expenses - were down 37 percent from 1992 levels.

Unfortunately, politicians don't let the facts get in the way when they attack lawyers.

The new danger posed by this continuous misrepresentation of facts is that lawyers themselves do not look beyond the rhetoric. A very dangerous development in recent years is the division among lawyers. Many lawyers feel compelled to explain they are not "trial lawyers." Members of our own association talk about "trial lawyers" and "the trial bar" in a derogatory way. This is not acceptable.

We all belong to the same profession and we should not only respect the work of our brothers and sisters but we should defend it. Any erosion into any area of our system of justice will be the beginning of a downward spiral that will not serve our profession or the public well. Those in our profession should realize that, "If a house be divided against itself, that house cannot stand." Mark 3:25.