Plaintiffs’ personal injury lawyers are feeling a little defensive these days, seeing themselves under attack in political campaigns nationally and in Minnesota where some campaign ads have made “taking money from trial lawyers” into a ground for attack.
Tort reform, particularly damage caps, is the issue, but trial lawyers themselves appear to be the target in these political ads. The ads blame excessive verdicts and runaway litigation for everything from higher health-care costs and a shortage of doctors to a struggling economy and continuing unemployment.
Minnesota lawyers on both sides of the courtroom say the attacks on lawyers and the trial system are misleading and unfair — particularly in Minnesota where there is no evidence that verdicts have been unreasonable or that medical-malpractice insurance premiums are out of control. Several attorneys said they believe that the attack ads have been driven by the economic interests of business and the platforms of political parties.
“This has been building for a long time,” said Minneapolis lawyer Katherine Flom, president of the Minnesota Trial Lawyers Association. “Trial lawyers are the ones who hold corporations responsible.”
The “trial lawyer” issue may loom so large in campaign ads and debates because insurance companies are suffering financially in a weak economy and sluggish stock market, and trial lawyers have traditionally been a large source of financial support for Democratic candidates, according to Flom.
“This is a contextual battle,” stated Flom. “This issue is cropping up because it’s part of a [political] agenda.”
Even defense lawyers say excess verdicts are not an important issue in Minnesota. The arguments raised in national political campaigns are unfair when applied to Minnesota, where most lawyers know better than to bring frivolous lawsuits and the ones that are brought get weeded out before trial, said Duluth attorney Steven Schwegman, president of the Minnesota Defense Lawyers Association.
The attacks on the trial system are not fair in any way, agreed Minneapolis lawyer Gregory Weyandt, who represents businesses. Weyandt is a Minnesota representative to the American Board of Trial Advocates (ABOTA) and a member of the American College of Trial Lawyers (ACTL), both of which include plaintiffs’ and defendants’ attorneys. He believes some candidates and office-holders have taken a simple issue — the occasional inexplicably large verdict — and used it to “ride into office.”
Obviously it’s a problem if doctors leave the practice of medicine or perform unnecessary procedures only because they are concerned about liability, said Weyandt. But, he asked rhetorically, “Do we have a crisis in Minnesota? We don’t lack for good health care. We don’t need caps on damages.”
A material fact issue?
Minneapolis lawyer Peter Riley would like to see the case against trial lawyers held to a summary judgment standard because he believes it would be thrown out of court.
“Why are they using statements not based in fact?” he asked. Although he concedes that malpractice insurance premiums are very high in some states, the premiums don’t necessarily correlate to verdicts, he argued. Furthermore, Minnesota’s malpractice rates are among the lowest in the country, and there are no damage caps here, he pointed out.
The rise-in-litigation argument may also be a red herring, trial lawyers say. The National Center for the State Courts’ statistics indicate that from 1998 to 2002, medical-malpractice filings in Minnesota decreased 36 percent, from 208 cases to 133, and accounted for approximately 2 percent of the tort caseload in 2002. However, nationwide there has been an 18 percent increase in medical malpractice filings from 1993 to 2002. Most of those cases are in New York and Florida. (Florida’s statistics do not distinguish between medical malpractice and other professional malpractice cases, the NCSC says).
Nationwide, tort filings have shown a downward trend since 1993, reports the NCSC, and most of those cases are automobile accidents and premises liability cases. Minnesota’s tort filings decreased 23 percent from 1993 to 2002.
Keep the 7th Amendment
There are a variety of theories why trial lawyers seem to have a big bull’s-eye painted on their backs. It’s a lot easier to blame the liability system than the economy or the stock market for health-care costs, lawyers say. Additionally, lawyers in general are targets because they represent unpopular causes, noted Weyandt.
Tort cases are frequently seen as something that happens to somebody else, according to Riley. “Most people don’t identify with victims but everybody pays insurance premiums,” he explained.
It’s also a lot easier to talk about tort reform than it is to talk about the 7th Amendment right to a jury trial, Weyandt said. Most lawyers agree that damage caps interfere with the right to a jury trial.
“Even defense lawyers who are hired to testify in favor of tort reform whisper to me that they hope the law never passes,” said Minneapolis attorney Chris Messerly, who represents plaintiffs in medical-malpractice cases. “They know the jury system is too important.”
Minneapolis lawyer Steven Kirsch, who is head of the local units of ABOTA and ACTL, noted, “An attack on lawyers is really an attack on the jury system. It’s the juries who give the awards. If lawyers lost they would stop suing.”
Finally, lawyers say, the public debate on all issues is just too noisy this year and views in opposition to tort reform get drowned out. “This is not the year for calm, reasoned discourse,” observed Riley.
Power to the people
Some lawyers say some public relations efforts are in order. MTLA doesn’t have the money to take on a media campaign, so it’s up to the individual lawyers, said Flom.
Flom recently wrote in the MTLA magazine, Minnesota Trial Lawyer, “As members of MTLA, I think we all need to look at what more we could have done over the last decade to better address the growing demonization of trial lawyers, and what we can do in the future. Should we have attended more Chamber of Commerce meetings, should we have directed more of our support to the Minnesota Consumer Alliance, should we have volunteered more in our communities to put the compassionate face of trial lawyers out there for people to see, should we have forged earlier and deeper alliances with [Republicans] here, or should we have given them the cold shoulder? ... No matter who sits in the White House in January, this problem is not going away and we need to do more to address it.”
Other lawyers agree with Flom’s list.
“Lawyers have to get out there and give the public a positive image,” said Minneapolis attorney Michael Ciresi. The United States has the strongest economy in the world largely because of its justice system and lawyers need to communicate that, he observed, “We need to engage in a debate, not a screaming match,” he added.
Ciresi also suggested that defense lawyers have a responsibility to the legal system and can’t just sit back when plaintiffs’ lawyers are attacked — although he acknowledged that they may be in a tough position because they don’t want to appear to disagree with their clients.
The ACTL and ABOTA are starting to communicate more actively on this issue, said Kirsch. The groups are also undertaking education of lawyers and students on ethical issues with an eye toward improving the public’s perception of lawyers, he noted.
On the other hand, trial lawyers are caught in a bind when it comes to counteracting the blitz of negative publicity. The campaign against them has been so successful that they aren’t their own best advocates any more, some lawyers said.
“We’re just above Osama bin Laden in the public eye,” said Riley. “We’re the easy target, the easy sound bite.”
An effective strategy is for the injured persons or their families and survivors to address the issue, some have suggested.
One of Messerly’s clients, Linda McDougal, exemplifies what tort victims can contribute to the debate. McDougal had an unnecessary double mastectomy at United Hospital in Minnesota after her biopsy tissues were confused with another patient’s and she was mistakenly diagnosed with cancer. McDougal took her case public in reaction to statements made by tort reform advocates, said Messerly. After she held a press conference, she and Messerly were asked to appear on many television shows in the United States, Europe and Australia. McDougal also testified before the U.S. Senate Judiciary and Health Committees and met with the Center for Justice and Democracy in New York.
“Linda had a sincere interest in making sure [tort victims] weren’t re-victimized [by politicians],” Messerly said.
People like McDougal and their families may be the best antidote to the negative talk about trial lawyers, Riley agreed. “You get the people out there, get to the human level,” he said.
It’s difficult for people who have been seriously injured (or the survivors of those killed) to have the strength to advocate publicly, observed Cirsei, and they erroneously may think they wouldn’t be effective. To the contrary, he said. “They have more power than they can imagine.”