Monday, March 13, 2006

Hutz v. Mason: Silencing Justice

Have you ever wondered why the people who believe that everyone in prison deserves what they got, are often the same people who assume that most lawsuits are frivolous, most jury awards extravagant, and most juries filled with incompetents?  Me too.  I mean, why is it that juries in criminal trials are essentially infallible, and that we should almost always feel overjoyed that we’ve destroyed some dude’s life or even removed it completely; based entirely on a jury’s opinion (as well as an appeals process which is too often nothing more than a rubberstamp)?  And yet in a civil trial, all this changes and the infallible jury becomes a worthless joke, incapable of even finding their own butts in a line-up.  

So the people who insist that all prisoners deserve more jailtime and all the executed deserve a harsher death, are so wary of civil juries that they want to completely rewrite the laws, in order to stop them from giving out big “awards”; even in cases where it may have been entirely warranted.  And let’s not forget about Grand Juries.  They’ll mock the entire Grand Jury system (wingnut alert) when it indicts an important Republican; but consider almost everyone else guilty as charged.

Am I just stupid, or is this entirely backwards?  We’ve got guys about to give up their lives, with only a disinterested public defender standing in the way of a railroaded trial.  Or where even the paid-for lawyers are more Lionel Hutz than Perry Mason.  And is this the case with the poor corporations losing the civil suits?  Hell, no. They’ve got a whole team of lawyers, each one of whose Rolex is worth more than that public defender might make in a year.  And research staffs, buttloads of Habeas Corpus, and all kinds of legally stuff that can knock your socks off.  And yet the “tort reformers” think the ultra-rich companies need the extra benefit of altered laws, while they tear their hair out each time DNA exonerates someone who was wrongly convicted?  Are they shitting us or what?

And of course it’s they who are being shitted.  Because lawsuits aren’t the big money drain that the “tort reformers” believe it is.  Here we see that malpractice awards cost us a measly $16 per capita in 2001.  And here’s an excellent article from Washington Monthly which directly addresses the anti-lawsuit skewing the media actively engages in, as well as a follow-up debunking of a letter from Newsweek legal writer Stuart Taylor who had been utterly savaged in the original piece.  For example, it cites a Harvard Medical Practice Study which showed that, “for every doctor or hospital charged with an invalid claim, there were grounds for at least seven other meritorious suits that were never filed.”

But who of our conservative “tort reformers” know any of this?  I’d guess not a whole heck of a lot.  They read all these invented horror stories about people ripping off businesses for their own incompetent actions, which they accept unquestionably because it confirms their worldview of lazy good-for-nothings bilking the system (and possibly because they themselves would someday like to benefit from the “courtroom lottery” that they imagine occurs daily).  And then there are some valid lawsuits, such as the McDonald’s coffee incident, which are widely seen as frivolous by those too lazy to research the facts.  (Personal Disclosure: I once spilled hot chocolate on myself when I was eight, because the mug burned my fingers and I dropped it on my lap; and I spent three weeks in the hospital.  It was very hot chocolate and it really really hurt.  I still have a scar on my leg.  So I’m a little biased regarding hot drink spillages.)

The Bathwater Out with the Baby

But these people are just being used.  Because businesses don’t just want to protect against frivolous lawsuits.  They don’t like the legitimate kind either.  In fact, I have no doubts that they hate legitimate lawsuits far more than the frivolous ones.  And that’s what this is all about: protecting Big Business.  This isn’t about “personal responsibility” and “fairness”, this is about money.  And while conservatives often rant about “personal responsibility” they most surely don’t give a damn about corporate responsibility.  And whether the issue is product negligence or toxic waste in our rivers; too many conservative saps have been convinced that a corporate charter is grounds for omnipotence.

And the thing is, who isn’t against frivolous lawsuits?  Excepting the people who actively engage in them, they don’t benefit anyone.  And I personally hate them.  Not just because it’s consumers who ultimately pay for these lawsuits, or because they’re unfair; but because they clog-up our court system and damage our ability to use legal remedies properly.  Because society requires legal remedies to bad situations.  Sometimes, two people acting in good faith can have a serious disagreement that can only be decided by an impartial judge.  And if people don’t have faith in our judicial system, they’ll be more likely to use some other system for justice.  

So the answer isn’t a wholesale attack against lawsuits, as many of the same laws which might protect against frivolous lawsuits would also serve to protect against valid lawsuits.  And that’s certainly one of the purposes of these “tort reforms”; to lessen the impact of all lawsuits, good and bad.  And sure, some lawsuits are probably frivolous; but without a doubt, others are not.  And the big question isn’t what we can do to stop frivolous lawsuits, but what we can do to stop frivolous lawsuits without damaging the real ones.  

And too often, these things can’t be done until after they reach the courtroom; and things that look frivolous or obvious outside the courtroom often look a lot different to the courtroom insiders who know all the facts; particularly if the outsiders are fed a particular storyline from a favored talkshow host.  The truth is that these “idiot juries” are often far more knowledgeable than those who actively denounce them and seek to limit their ability to deliver justice; and often, the evidence that they’re not allowed to hear is the evidence that isn’t legally admissible.  And that’s just how a justice system should work.

Impugned Motives

And there can be no doubt that these people fail to grasp the point of punitive damages; as if the $10,000 fine that would deter you from acting in bad faith would equally deter McDonald’s or Exxon; especially regarding wrongful activities that generate hundreds or thousands of times more than the fine they’d be levied with.  And while they attack the reimbursement of medical expenses or lost wages, they absolutely hate punitive damages.  That’s the real “lottery” aspect to them.  But again, when a corporation acts in a knowingly dangerous fashion and it results in the direct death of a child; what are the actual damages inflicted?  Do they really think that a company should be left unscathed as long as the victim is killed instantly?  Of course not.  The problem is that they’ve been led to believe that most lawsuits aren’t legitimate anyway; and can’t even discuss this topic without being overwhelmed by hatred towards frivolous lawsuits.  That’s not to suggest that I completely agree with the punitive system which makes the victim a beneficiary of the punishment; but the “tort reformers” complaint isn’t really regarding where the money goes, but rather that the money was paid at all.  Because again, this isn’t about fairness or justice; it’s about money.

And we can have no doubt that each and every “tort reformer” will most gladly use the civil court system if they were seriously wronged, and even when the wrong isn’t so serious.  Here’s an excellent post from Wampum regarding rightwing politicians who were more than happy to use our civil court system in ways that reformers openly detest (for example, GW suing Enterprise-Rentacar for renting a car to someone who had no license and hit one of the twins; and getting a $2500 settlement from Enterprise).  That’s not to impugn them with bad or greedy motives, necessarily.  It’s to say that there is a reason why the court system exists, that even “tort reformers” will agree with, if they ever need to use it.  

And let’s not forget that there is another angle to the rightwing witchhunt against lawsuits: Trial lawyers can make a lot of money, which they often give to Democratic candidates or even to run for office themselves.  And so while Republicans have a second-hand interest in this to protect their campaign investors; they also have a first-hand interest in stopping the dreaded trial lawyers from receiving the big bucks that they send towards the Dems.   But that’s partly a necessary outcome because the GOP has taken such a strong interest in advocating to protect businesses against liability for their actions.  While trial lawyers are surely acting in their own self-interest, this also serves to protect our ability to deal on relatively equal terms with big business; and that’s just another part of the equation that Republicans are trying to stop.

So when we take all this into perspective, it’s obvious that the conservative’s big target isn’t frivolous lawsuits which have no real chance of winning; but against juries who decide that a case isn’t frivolous and punish businesses who they deem to be deserving of punishment.  They will often cite the frivolous suits, but the real target is the jury system itself.  And while conservatives trust juries to destroy people’s lives, they’re firmly against juries which can justly punish corporations for their bad acts.  And if we took this out of the jury’s hands, they would next target the judges or anyone else they couldn’t control.  Because this isn’t about protecting against frivolous lawsuits or wrongful claims or idiot juries; this is about silencing the ability of the little guys to combat the big guys.  This is an assault on justice itself.


virgil said...

wow, I wish I could reason like that with a big hangover. I guess that's one of the benefits of having a bio-brain.

Mumphrey said...

The best way to weed out "frivolous" lawsuits is to let them go to trial.
But you're right; it's the whole idea of big business shelling out money for screwing somebody over badly. I don't know why so many not rich right wing yahoos so deeply identify with the poor, beleaguered gigantocorps.
Then again, I don't know why so many not rich folks are right wing yahoos at all.
And I love trial lawyers. I thik John Edwards might well be the next great president. But I love trial lawyers in general. I mean, when some huge company kills somebody or maims somebody, or somehow just generally screws somebody over, it's the trial lawyers who can help the victims.
I mean, what chance would a guy like me, who isn't a lawyer, have against IBM or Exxon? I don't know the first thing about the law. So God bless the trial lawyers. Sure, they get rich, too. But, you know, the great crusaders like Zorro or Robin Hood or the Scarlet Pimpernel who take on the high and mighty on behalf of the downtrodden,and do it with no thought of reward for themselves, all have one thing in common: they aren't real. Real people don't take on causes like this as their life's work unless they can make a living at it.
And as for demonizing the "greedy" victims who sue to get rich, well, ask the family of the kid whose bowels were sucked out by a faulty swimming pool if they would really rather have the money over their daughter's bowels.
God, the poor saps who screech against frivolous lawsuits are just one bad corporate act away from needing a trial lawyer themselves.

Dan said...

Great job BB.

Mumphrey: I suspect 2 explanations cover a lot of non-rich right wingers:

1) The affluent who think they're in the top 5% of earners who really benefit from republican policies, but actually are nowhere near the top 5% (really, polling does show most people in the top 1/3 of earners substantially overestimate where they are in the spectrum, the top 10% all think they're the top 1% and so forth...)

2) People who think they someday will be in the top 5% but know they are not now. These are the people who get most twisted about estate taxes, anticipating the billions they want to leave, unmolested to their decesndants. The problem of not having said billions is a small detail, they assume voting republican will make the billions possible.

JaundiceJames said...

Absolutely outstanding! Hurray for Brainshrub and the Carnival of Liberals or I wouldn't have found you. -JJ

wtf said...

Great post! Loved your opening line:

"Have you ever wondered why the people who believe that everyone in prison deserves what they got, are often the same people who assume that most lawsuits are frivolous, most jury awards extravagant, and most juries filled with incompetents?"

My dad's a liberal lawyer so maybe I have always taken more offense at the whole issue of tort reform than most...and no, unfortunately we are not rich.

But it is so damn backwards how the republican party has turned this into a populist issue and gotten support for it.

Punative damages are the only thing keeping corporation from making a simple cost/benefits analysis with people's lives. If you can quantify risk its much less risky.

Sure it sucks to wonder how much it will cost you if your products kills 500 people...but then, maybe, you shouldn't be making the fucking product. If you know exactly how much 500 lives are worth then you know exactly how much to charge for it!

Larry said...

"Have you ever wondered why the people who believe that everyone in prison deserves what they got, are often the same people who assume that most lawsuits are frivolous, most jury awards extravagant, and most juries filled with incompetents?"


daveawayfromhome said...

Maybe the answer here is to make corporations somehow liable to criminal charges, either through very large fines or by assigning blame (and jail time) to the Head of the Company (who, after all, is ultimately responsible, regardless of delegation. That's why he gets the Big Bucks, isnt it?). If Corporations are going to recieve the rights (plus) of citizens, then they should also have the responsibilities, right?