by Guy Townsend, Editor, PDA Communications Team

Several decades ago one of the major automobile manufacturers discovered that one of its products had a disturbing propensity to burst into flame when involved in a collision. This happened with such frequency that the automobile manufacturer considered making some significant changes in the vehicle’s construction so as to alleviate the problem. Before doing this, however, corporate officials decided to conduct what is known as a “cost-benefit analysis” to determine what effect curing the defect would have on the so-called bottom line.

This cost-benefit analysis turned up the following interesting fact: it would cost the motor company more money to retool the vehicle manufacturing process than the company was paying out in settlements to the survivors of people who were burned alive in the defective product.

The result was that the motor company continued to manufacture the product, knowing full well that the defect in manufacturing was going to cause multiple deaths among the people who purchased the vehicle, and the company did so without advising the automobile-buying public that they were buying potential death traps.

This situation continued until the facts leaked out and the motor company’s victims stopped being satisfied with paltry settlements and took the motor company to trial, where justice was finally meted out at the hands of American citizens sitting on juries–with the assistance of so-called “trial lawyers.”

Were it not for these “trial lawyers,” so maligned today by the Republican lackies of big business and the medical and insurance industries, people would still be getting fried to a crisp so that the motor company could make more money to pay even higher bonuses to the executives who decided that making more money and earning higher bonuses was worth more to them than saving human lives.

Let’s be clear about what this means. A major U.S. corporation made a conscious decision to continue manufacturing a product which it knew would lead to the deaths of the people who bought the product because it could make more money by doing so than by retooling its manufacturing process so as to produce a safer product.

They placed a higher value on profit than on human life. That is the kind of mind-set that “trial lawyers” protect the public from. And it is these very corporate leaders, these people who so totally lack any conscience at all that they would let people die so as to make more money for themselves–it is these people and their supporters who are behind this effort to tar every attorney who happens to represent plaintiffs as being the cause of all the ills in our courts today.

A point to keep in mind, however, is that it is not trial lawyers who set the levels of settlements and jury verdicts in trials. It is juries, made up of individuals like you and like me, who decide what these verdicts should be. And these juries are not just twelve random people dragged in off the streets to hear complicated cases. Both sides in a jury trial participate in the selection of the twelve people who will hear the case.

But what, then, of the role of the much maligned trial lawyer? The first thing to bear in mind is that “trial lawyer” has become a code word (okay, code “phrase”) used by big-business apologists. When a case goes to trial there isn’t just one lawyer present; in fact there are usually two or more trial lawyers on the side of the big corporation. What the code word “trial lawyer” means is “plaintiff’s lawyer”– a lawyer who is willing to sue big business on behalf of its victims.

Now, big business does not like being sued. It much prefers continuing to manufacture death traps and make money at it, to having to behave responsibly. So what big business does is hire an entire stable of trial lawyers, who sit there in the corporate offices and simply wait for someone to sue the corporation after being injured by the corporation’s product. These people, these trial lawyers, are on retainer to–if they are not actually salaried by–these huge corporations. They are trial lawyers whose only purpose is to see to it that the corporations do not have to pay for the injuries they inflict upon an unsuspecting public.

So don’t be mislead. Corporate America does not dislike lawyers. It loves lawyers–that is, those lawyers who represent the corporation when it is being sued by its victims. What they don’t like is plaintiffs’ lawyers. Lawyers who are willing to go to bat for the little guy against the big guy.

Suing a large corporation is not easy. If you happen to have a loved one who was fried to a crisp in a defective automobile and you wish to hold accountable the company whose knowing negligence killed your loved one, you simply cannot do it yourself. The procedures involved are complicated and enormously time-consuming. You simply have to have a lawyer.

People who practice law do so to make a living, and they have to be paid for their time. The ordinary citizen, who does not have millions of dollars available for filing lawsuits, is, realistically, unable to pay an attorney $400 or $500 an hour for the hundreds, if not thousands, of hours it will take to prepare the case for trial.

That being so, an arrangement has developed over time which permits people, however limited their resources, to maintain legal actions against large corporations. This is known as the contingency fee. When an attorney takes a case on contingency, he agrees to contribute his legal skills to pursuing the case and defers receiving payment for his legal assistance until a settlement is reached in the case. If no settlement is reached, or if the settlement (in this case, a verdict) goes against the plaintiff, then the attorney receives no payment whatever for the hundreds or thousands of hours he has put into the case. If a settlement is reached, then the attorney gets a percentage, usually a third but sometimes more and sometimes less, of the plaintiff’s award in the case.

What this means is that sometimes the attorney comes up dry, after putting in thousands of hours of his and his associates’ work, and sometimes the attorney makes a huge amount of money.

The Republican advocates of so-called “tort reform” point with glee to those individual attorneys who do earn million dollar fees, and say that they are responsible for the crisis in our legal system. They do not mention those plaintiffs’ attorneys who do not prevail in their uphill battle against the enormous resources of corporate America and get nothing for the time and effort they expend on behalf of their client. And they completely ignore the always more numerous trial lawyers who are on the payroll of the big corporations. You know–those guys sitting over there at the defense table wearing those $3,000 suits and those $500 pairs of shoes, doing their best to persuade the jury that it was really Aunt Sally’s fault that she got crisped in her car, or Uncle Fred’s fault that the doctor removed the wrong lung.

Now, as anyone who knows me will tell you, I am no apologist for the legal profession. But it is totally dishonest to portray plaintiffs’ attorneys–as opposed to those attorneys who defend large corporations–as being wicked and evil and in some way responsible for the so-called crisis in our legal system.

The issue has come to the fore recently because of the crisis in the medical industry. We’ve all seen reports of doctors who are abandoning their practices because they can’t afford their malpractice insurance premiums. The fact of the matter is that the insurance industry has gotten used to making huge amounts of profits on its premiums, and those profits disappear when the insurance companies have to pay out large amounts of money. So the insurance industry, eager always to pass along any losses and retain all the profit for itself, has gotten into the habit of raising premiums whenever a big judgment goes against one of its insured. That is the reason why the medical industry is in disarray presently. Insurance rates have gone up, that is true, but the reason they have gone up is the unwillingness of the insurance industry to pay out the product that it is collecting premiums to provide. They are, in effect, trying to make doctors self-insured. “If you want protection against a million dollar judgment, then pay me a million dollars in premium.” That is essentially what the insurance industry is saying. Ironically the insurance industry, and indeed the medical profession, would be far better off financially than they presently are if they would insist that doctors police their own ranks.

The great majority of claims against doctors for medical malpractice are directed against a tiny percentage of the doctors actually practicing. Those few incompetent doctors continue to commit malpractice, their patients continue to be injured, the doctors continue to be sued, the insurance companies continue to have to pay out settlements–and their profit margin decreases. The solution, obviously, is for the doctors to police themselves. But that is not the solution resorted to by doctors–or, for that matter, by corporations. They don’t want to have to police themselves. What they prefer, instead, is to set a limit on the amount of damages that anyone can receive for malpractice or corporate negligence.

So they give huge donations to Republican candidates who in turn willingly act as shills for the doctors–and the insurance industry, and any other industry which contributes significantly to Republican candidates–and who try to place the blame for all this on the plaintiffs’ lawyers.

“Tort reform” will mean a return to the bad old days when making a buck was all that mattered. An example: In 1993, five year old Valerie Lakey had her intestines sucked out of her body by a defective swimming pool drain–a drain which was known to be defective by the manufacturer, which had settled a dozen other cases for peanuts.

Valerie survived, but she will have to spend 12 hours of every day for the rest of her life hooked up to feeding machines just to stay alive. Under the Republican “tort reform” plan, all that Valerie Lakey could receive in punitive damages against Sta-Rite Industries, who knowingly manufactured the defective product which prevented her from having any sort of normal life, would be $250,000. If Valerie only lives to be fifty-five years old, that comes to $5,000 a year. That’s all the Republicans think this child’s suffering is worth.

They are wrong. Tort reform is just another Republican gift to the rich.