Corp Reform - Not Tort Reform

So What?

Many tort reformers try and use dollars and cents to persuade the public that we should drastically change the civil justice system. A particularly salient example is DaimlerChrysler President Tom LaSorda’s recent claim that tort costs add $500 to the cost of every vehicle. While it is worth noting that LaSorda himself admits this figure is inaccurate – oh, is it ever - refuting that number isn’t the point of this post.

Mr. LaSorda, for the sake of argument, I won’t challenge your claim that $500 of the price of every vehicle you sell is due to the costs of the tort system. Instead, I ask you, “So what?” Catalytic converters and other smog-control devices add more than $500 to the cost of a car, but you don’t argue that we need to gut the Clean Air Act; the purpose of the Clean Air Act is to protect the environment, not to help manufacturers sell cars.

The purpose of our civil justice system is (at least) threefold:

1: To make tort victims as whole as possible.
2: To hold tortfeasors financially accountable for their misdeeds.
3: To deter others from committing torts.

The purpose of our civil justice system is not to help manufacturers sell cars. So when you claim that $500 of the cost of my PT Cruiser comes from the civil justice system, I again ask you, “So what?” That figure might make for an interesting trivia question, but it doesn’t justify changing the civil justice system. The purpose of our civil justice system is not to help manufacturers sell cars.

Mr. LaSorda, you strongly imply that $500 is simply too much for the civil justice system to add to a car’s price. Do you have a number in mind that would be fair? I suspect you do. And I suspect that number is $0.00. Your company supports legislation that would prohibit any liability lawsuit over any product that was approved by a federal regulatory agency. The effect of such legislation would be to almost completely eliminate product liability lawsuits against auto manufacturers; such legislation would also frustrate the purposes of our civil justice system. I don't call that reforming the justice system, I call it destroying the justice system.

More than once, I’ve invited readers to help me see the relevance in the tort “reform” debate of the cost of the civil justice system, only to be met with vague arguments and various personal attacks. I again repeat my invitation. Am I off the mark when I argue that helping Tom LaSorda sell more cars is not a valid reason to change our justice system? Note that I am not arguing whether tort "reform" will help sell more cars. I am instead arguing that even if it did, economic benefits do not constitute sufficient cause to change our justice system.

(Originally posted at TortDeform.com)

New Reciprocal Links

Just wanted to invite you all to check out

http://www.newyorkpersonalinjuryattorneyblog.com/ and http://www.nddb.net/ .  The former site is self-explanatory.  The latter is a neat site for patients to review their doctors.

Both of these sites are strong enough on their own to merit links, but the fact they link to me seals the deal.  Again, if you're linking to me let me know and I'll most likely add a link back.

Things are really livening up at tortdeform.com, so you should definitely check that out.  Also, if you've got any links you think I should see, by all means email me at justinian at corpreform.com.

John Edwards In 2008?

It looks like John Edwards will be running for President again in 2008. I can absolutely assure you he has my vote, and he should have yours as well. I had the good fortune to see Mr. Edwards speak at a rally here in Lansing, and got to meet him afterwards. I must say that of all the politicians I've been around, Edwards is without a doubt the most sincere. I can usually spot a politician who is just spouting talking points. I believe John Edwards truly cares about eradicating poverty in this country. He's ridiculously charismatic. And he even looks like a Three's Company-era John Ritter. (Am I the only one who sees the resemblance?) Most importantly, John Edwards has a first-hand understanding of just how important the civil justice system is to America. Under his watch, the civil justice system will be protected from those who wish to gut it for corporate gain.

Now this definitely won't happen, but can you imagine if he could get Spitzer as his running mate? Talk about a dream ticket. I'd even knock doors for them. Hell, I'll probably do it for Edwards, no matter who he picks as his running mate.

Everyone’s a Critic

I recently wrote an article at Tortdeform.com criticizing "loser pays." The gist of the article is that if fairness requires applying it to civil law, so too does fairness require it be applied to criminal law. Besides the usual rogues' gallery of critics at Tortdeform, I discovered another critic, Jonathan B. Wilson. He begins his attack with:

"Justinian's first post is noteworthy for making one of the least-informed arguments ever against tort reform."

I suspect he disagrees with me. Since his site doesn't have the ability for me to comment there, I'll respond here and email Mr. Wilson to invite him to respond in the comments thread.

"The problem is that Justinian devotes the remainder of his post to the argument that, for a loser-pays rule to work, it would have to be applied to criminal cases as well.

 This argument is not only factually wrong, but misunderstands the distinction between civil and criminal law in our litigation system and adopts a "straw man" view of the loser-pays rule that has never been adopted by any responsible advocate on the tort reform side of the equation."

Actually, I said for "loser pays" to be fair, it should be applied to criminal law as well – not just for it "to work." For those too lazy to read the original post, I listed a litany of reasons why instituting "loser pays" in the criminal world would be a very bad idea, and extrapolated the consequences to the civil world. I oppose applying it to either.

"Our civil law exists to right wrongs between private parties, primarily through money damages.  Our criminal law exists to punish criminal offenses and to deter crime, largely through the imposition of incarceration."

I'll assume that Mr. Wilson's failure to list the deterrent effects of the civil justice system and of punitive damages was purely an oversight. If I'm incorrect and his omission was intentional, I hope he'll explain why.

"The differences between the two legal systems (which Justinian will, we hope, explore during his first year of law school) are legion, beginning with the matter in which cases are commenced (civil complaint versus indictment) to the standard of proof applicable at trial (simple preponderance versus clear-and-convincing) to the standard of review on appeal."

Neither the burden of proof nor the manner in which cases are commenced are relevant to the fairness of a "loser pays" rule. The principle behind "loser pays" is that a person who didn't commit a tort shouldn't have to pay the legal costs incurred defending himself in that case. I used a specific example in my article to illustrate the point: If an individual sues me for negligent driving, and I was not negligent, "loser pays" would force the plaintiff to reimburse my legal costs. If I should be refunded those legal costs, why I shouldn't also be refunded my legal costs if I'm prosecuted for drunk driving if I was not in fact drunk? Whether a prosecutor or a plaintiff forced me to spend money makes no difference to my bank account. Either way, I'm forced to spend money to defend myself against false accusations. If I spend myself into bankruptcy in a criminal case and am then acquitted, I'm no better off than a defendant who spends himself into bankruptcy in a civil case who also prevails.

If the purpose of "loser pays" is to compensate a person wrongfully accused, it is only fair to apply that protection to wrongfully-accused criminal defendants. That is what "loser pays" is supposed to do, isn't it – compensate individuals who were wrongfully accused?

Or is it really designed to both punish those who wrongfully accuse and to deter others from accusing at all?

Can’t win the debate? Silence your opponent.

For the past couple of years, Ted Frank of Overlawyered.com and I have sparred over the issue of tort reform. At my own personal blog, Corpreform.com, Ted and I engaged in several lengthy arguments. While I disagreed with many of his comments, I never censored him. In fact, I often moved his comments from comment threads to main posts, to better highlight our debates for readers. For the most part, our debates had been civil and productive, which caused me to respect Ted a great deal. My respect for him was so great that at one point we traded a series of very cordial emails in which I asked for and he offered me career advice. Again, while I disagree with most of Ted's position, I admire and respect him. I am sorry to say that Ted's actions at Tortdeform.com and at Overlawyered have diminished that respect.

It is a rare post at Tortdeform that Ted doesn't criticize in the comments thread, regardless of who authored the post. Over the past several months, his comments have grown more frequent, more critical, and more unprofessional. He's accused me and others on several occasions of illiteracy, he's called me "fundamentally dishonest" more than once, he's accused authors of dishonesty and hypocrisy merely for disagreeing with him, and whenever he's backed into a rhetorical corner or otherwise proven wrong, he equivocates and accuses others of game-playing or sophistry. One reader of the site even noted that, "he seems to have a special affinity for insulting Justinian Lane." If you read even one of the above links, you'll wonder how Ted can justify his statement that, "I have not attacked Mr. Lane."

Most recently, he attempted to misquote a Harvard study to back up one of his dubious arguments. When I corrected his mistake by quoting the author of the study, he accused me of "trolling." If you look at the right-hand column of Tortdeform.com under "Contributors" you will see several names, including mine. You will not see Ted Frank's name. Nor will you find Ted's name under "Guest Contributors." As such, Tortdeform.com is much more my site than his. Accusing me of trolling on my own site is tantamount to accusing me of trespassing in my own home. If anyone is a troll at Tortdeform, it is surely Ted. His constant and perpetual personal attacks on the various contributors to Tortdeform.com do nothing to further the debate over how to protect the civil justice system or how to properly compensate truly injured citizens. To the best of my knowledge, Ted's antics have never been censored at Tortdeform, no matter how rude he has been. And since I don't moderate the comments at Corpreform (other than to delete Viagra spam and the like), I know for a fact Ted has never been censored at Corpreform.com, nor will he ever be. I don't believe in winning an argument by silencing my opponent.

The powers-that-be at Overlawyered don't share that belief. On at least three, and possibly as many as five distinct occasions, someone at Overlawyered refused to approve my comments. Yesterday, I was responding to yet another post on Overlawyered in which Ted accused me of "a fundamental lack of reading comprehension" and in which he misrepresented one of my arguments. I tried to comment on his post to correct Ted's misrepresentation. At this time, my comment still hasn't been approved, even though eight other comments posted after mine have been approved. I can only assume my comment never will be approved. Again, this is at least the third time this has happened, so I assume it to be intentional. I'm not sure what role that Ted plays in approving comments to his posts, but I'm confident he is at least aware that I've attempted to comment on the posts in which he attacks me. (Ted, if you don't approve of this censorship, let me know either in a comment here, or via email and I will correct this post after my comments have been approved and posted at Overlawyered.) I want to be clear that the comments I attempted to post were not lewd, vulgar, or inappropriate. I can only surmise I've been censored for merely disagreeing with and correcting Ted.

I also want to be clear about something else. It is very rare that I attempt to comment on a post at Overlawyered. The posts I do attempt to comment on are usually those in which I'm mentioned by name or in which an Overlawyered author is discussing a post from Tortdeform.com or Corpreform.com. There are two reasons why I comment so sparingly. First, I've found that most authors don't like criticism and Ted seems to despise it. I welcome it. Only by engaging my opponents in free and open debate do I have the opportunity to strengthen my arguments and learn the weaknesses in theirs. Second, I've found Overlawyered to be little more than an echo chamber where anti-consumer propagandists mindlessly bash the civil justice system. My goal has been and always will be to ensure the civil justice system is fair to everyone. I believe Ted's goal is to ensure the civil justice system is only fair to such generous funders of the tort reform movement and to his employer as Philip Morris and Enron. As such, I don't think posting comments there is a productive use of my time.

I'm confident that I'll be attacked again at Overlawyered.com, if not for this post, then for a future post or comment at Tortdeform.com in which I will correct another of Ted's misrepresentations. I would hope for the opportunity to defend myself in the comment thread on Overlawyered.com, but I will not be surprised if I am once more denied that opportunity. Then again, that my attackers are too afraid to publish my response to their personal attacks against me discredits them in a way my words never could.