Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Thursday, May 11, 2006

Tort Reform

Is in the news this morning. First, from the B’ham News:

The U.S. Tort Liability Index: 2006 Report, to be released today by the California-based Pacific Research Institute, divides states into three groups of saints, sinners and salvageable. The report characterizes Alabama as among the "sinners" states that are predicted to fall in its ranking or stay at the bottom because of relatively high civil lawsuit verdicts and a failure to enact few or any comprehensive reforms.

You can get the whole study here.

The Tuscaloosa News reports on a more objective study, showing that in the med mal context “frivolous lawsuits” are really not a problem:

Many of the lawsuits analyzed contained no evidence that a medical error was committed or that the patient suffered any injury, the researchers reported.

The vast majority of those dubious cases were dismissed with no payout to the patient. However, groundless lawsuits still accounted for 15 percent of the money paid out in settlements or verdicts.

The study’s lead researcher, David Studdert of the Harvard School of Public Health, said the findings challenge the view among tort reform supporters that the legal system is riddled with frivolous claims that lead to exorbitant payouts.

The Harvard report is a big reason why we all ought to ignore groups like PRI who cry about lawsuit abuse. The system already has plenty of ways to screen out worthless cases. First, you have to actually state a claim. Then you have to convince the judge you have some evidence to prove the claim. Only after clearing these two hurdles do you get to a jury. After presenting the case, but before the jury makes its decision, the judge again gets to decide whether or not you have submitted enough evidence. Then the jury makes its decision. Next the judge decides whether the decision will stand or not. Finally you make your way through Alabama’s Big Business friendly appellate courts. Only after all of that do you get to see a dime.

All of this costs money and time, which is another barrier. No attorney is going to take the case unless she thinks it has a decent shot of giving her a return. A good attorney will also warn the client that this is an expensive and long-lasting process. If the case does not have merit, it makes no sense to bring it.

These financial costs and legal barriers more than sufficiently weed out meritless cases. What remains are arguable cases. Me, I think a group of people who represent the community are the best people to settle that argument. That is, I trust juries to make good decisions. They hear the facts of each case and make their decision based on those facts. They are white people and black people, republicans, democrats and independants, professionals and laborers, men and women. Appellate courts, legislators, and ‘think tanks’ are ususally pretty homogenous and always far removed from the facts.

If you go to the hospital for an operation, and the doctor removes the wrong organ, who is in the best position to decide the value of your pain? Some pro-business group in California? Or twelve of your pears peers (Yeah, I'm a collij graduate, so what about it?) who sat in the courtroom and heard all the evidence? I'll take the latter option.