Meaningful Distinction:

Patrick S. Lasswell Look outward for something to accomplish, not inward for something to despise.
pslblog at gmail dot com
Thursday, November 06, 2003
Arguing With Sean: Tort Reform

I make no secret of my regular disagreement with Sean LaFreniere. I agree with him on many, probably almost all, important things. I also find him misinformed and with bad priorities a lot of the time. What is more entertaining is that we are both comfortable with confrontation. Sean credits this to our mutual Irish ancestry, and is very wrong because I have never punched him in the nose, a key racial identifier for dispute resolution.

Most recently, Sean and I are arguing about Tort Reform. I would have this argument in the comments section of his blog, but I hate the tiny type of the java app that he is using and I don't like to get caught misspelling. (I'm not complaining too bitterly, my blog doesn't even have a crappy comments function, I have to envy his.) I think this argument is worth having and should be done on the Big Screen, so here goes:

The personal injury and class action lawsuit aspect of our legal system is broken. The tort bar is not held responsible for the economic and social impact of their actions. The reward of money for unprofitable activity is best used as a spice, not a staple. In many States of the Union, the tort bar controls the judicial process to the extent that they have made the reward of money for unprofitable activity a staple for a considerable portion of the populace. The most dramatic result of this process is that in several states it is difficult if not impossible to get medical care. Obstetricians, emergency physicians and neurosurgeons in particular are moving from states where they can no longer afford malpractice insurance because of out of control tort bars. Indulging lawyers at the price of prenatal care is indefensible.

Beyond this, the drive to jackpot justice at the State Attorney General level is rapidly approaching frenzy. This is a particularly destructive trend because Attorney Generals are not subject to the same political opposition and accountability for their actions that other statewide politicians are due to the technical nature of their jobs. State Attorney Generals do not get unseated for indulging in frivolous lawsuits against out of state companies, especially when there is settlement money in the offing. This is egregiously pernicious because the AG's sub-contract the work and part of the settlement to powerful and wealthy class action specializing law firms who are in no way accountable to the citizens of the state. These large class action firms have, since the asbestos and tobacco settlements, achieved what can be described as critical mass; they are capable of self-sustaining operations. When a firm can spend a decade grinding down a profitable business with the expectation of a reward regardless of the merits of the case, the system is broken and needs to be fixed. That is the situation we have today.

Finally, the effects of the out of control tort bar outweigh the benefit they might give. In much the same way that criminals do much more damage than they ever profit from, tort lawyers are now imposing a much higher economic and social burden than they are delivering an economic or social benefit. Effort spent hiding and defending profit from rapacious lawyers is effort not spent generating beneficial and profitable new products and industries. Judicial hellholes that support jackpot settlements destroy the communities they occupy. Settlements made on the basis of anguished testimony instead of scientific proof destroy the standards of evidence that make the legal system functional. When it becomes more profitable to be litigious than civil, the fundamental social compact is broken, and that is what we are confronted with today.

So tell me again, Sean: Why should we increase the personal injury caps?
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