A Safer, Saner, Fairer Nation

From Trial Magazine, October 1992

The unprecedented attack on trial lawyers by the organized tortfeasors and their insurers is now fully joined by the president and vice president of the United States. They call us vile names. They concoct horror stories about us. They even criticize our footwear.

They make us their scapegoats for all of America's ills: weak competitiveness, declining productivity, deficient health care. You name it; if something goes wrong, blame it on trial lawyers. Lawyer bashing has always been a national indoor sport. We are used to it.

What we cannot abide, however, is the attack on our clients-the innocent injured, the victims of discrimination or corporate greed and misconduct. What we cannot abide is the assault on the very foundations of our system of justice and on the Seventh Amendment.

The assault is both unjustified and virulent. I yearn to get the real facts before the American people. After the last night of the Republican convention, I wanted to challenge both of the party's nominees to a debate-any time, any place, any rules, even two against one.

Upon reflection, however, we decided our response should be carefully measured and designed to preserve the essential bipartisan nature of our organization. The real issues of this campaign are jobs and the economy. We do not want to let it become a referendum on the social acceptability of trial lawyers.

Like all human beings, we want to be proud of what we do. We want to make a contribution to society. Have we? There are now beepers on trucks and construction equipment to warn others when the vehicles back up. Punch presses are equipped with guards. Iowa farm tractors have roll bars. Dalkon Shields are off the market. Asbestos is no longer installed as insulation. None of these advances came about through laws or regulations. Certainly they are not the result of corporations suddenly developing consciences. These changes and literally thousands more-changes that made a difference-came through civil lawsuits tried before juries by trial lawyers.

The National Safety Council says that in the Last 10 years the fatal accident rate has dropped by 10 percent. The council attributes this dramatic drop to Ralph Nader, the consumer movement in general, and better medical care. I say civil lawsuits also played a critical role, and I am hardly the only one who thinks so.

In a 1985 survey by the American College of Obstetricians and Gynecologists, 35 percent of the obstetricians surveyed said they had changed the way they practice as a result of professional liability. Changes include improved testing and monitoring, increased use of written informed consent, and better explanation of risks to patients.

The Conference Board, led by some of America's highest corporate executives, surveyed corporate risk managers and concluded in a 1987 report that products liability "most significantly affected management decision-making... in the quality of the products themselves. Managers say products have be-come safer, manufacturing procedures have been improved, and labels and use instructions have become more explicit."

Sports Illustrated reported in 1991 that, for the first time in 60 years, no player died from football injuries. Safer helmets arc largely responsible. The publication cited litigation against manufacturers of unsafe helmets as one of the principal reasons for safer helmets.

These examples illustrate graphically the importance of the role we play, as ATLA's Mission so clearly states, in "promot[ing] the public good through concerted efforts to secure safe products, a safe workplace, a clean environment, and quality health care." Most Americans have no idea of our role and that of our cherished justice system until they or somebody they love falls victim to abuse or neglect.

During election campaigns, citizens should be getting an education in the rights and remedies available to them in a free society. Instead, they are getting railroaded by the most colossal disinformation campaign in recent history. They are being misled into questioning those most precious rights without even understanding what they are. We must know the facts and tell the facts and use the tools of our profession to convince our lawmakers that those who are trying to obstruct civil justice are wrong. They are wrong factually, legally, and-most important-they are wrong morally.

Why such a concerted effort to destroy our system of justice? Precisely because it works too well. It compensates victims. Wrongdoers are forced to provide redress, usually through insurance. If they act intentionally or recklessly, juries may even punish them by taking away their ill-gotten gains through punitive damages.

The concepts on which our system rests are hardly new. The code of Hammurabi from the 18th century B.C. provided that if a house collapsed and killed the occupants, the builder would be executed. That is strict liability in the extreme. Under the common law of England and colonial America, everybody was responsible for the injuries that they inflicted on others, regardless of fault. It was absolute liability, not just strict liability.

But of course that was a terrible inconvenience to the Industrial Revolution, so the courts changed it. The new concept was fault or negligence. Gems like "assumption of the risk" and "contributory negligence" were also added. Damage awards were woefully inadequate. Post-trial reductions of damages by judges were all too common.

One judge remitted a jury verdict for the loss of a leg by a 30-year-old worker. He reduced it from $4,000 to $2,286 and explained his decision this way: "The plaintiff's disability is for life, but for life only." In 1922 a court of appeals judge stated, "Of the three fundamental principles which underlie government -protection of life, liberty, and property- chief of these is property." We have some judges on the bench who agree with that statement even today.

The Iroquois theater fire occurred in 1903. The building was claimed to be fireproof. Five weeks after it opened, 1,900 people were packed into a structure that was supposed to hold 1,600. A fire started on stage. The fire curtain wouldn't go down. The balcony was sealed off. Eleven of the 16 exits were locked. The building was gutted in 15 minutes, and 602 people died. There was no criminal prosecution. The civil litigation lasted for years. A few families received $750. Most received nothing.

In the Triangle Shirt Waist fire of the 1890s, about 145 lives were lost because of purposeful violation of laws intended to protect workers. Those responsible were acquitted of criminal charges. Only 10 percent of the families of the victims were paid at. all-and they received about $75 each.

It's different today. It's different because of the re-emergence of strict liability-and because of us, the plaintiffs' trial bar. We can be proud of our work. We have made our country safer, saner, and fairer. Can the president and vice president say the same?