Republican Trial Lawyer

Why Are Class Action Awards So Small?

2005-02-24T16:21:00.000-05:00

Q: I was a member of a class action, my check is so small because those trial lawyers took my money?

A: No. The defendant took your money, if the lawyer didn't pursue the class action, you would have received nothing.

Class actions are typically when a company stole a small sum of money from a many different people. If it wasn't for class actions, wrongdoers could steal a little money from millions of people without punishment or having to pay those many victims back. The lawyers who prosecute the fraud should be paid for their work. Getting paid for your work is an American ideal. It's just capitalism after all.

Q: Okay, but those lawyers still took their fee and then gave me what was left over.
A: No. Class counsel (the lawyers for the plaintiff in a class action) are NOT paid by contingency (a percentage of the total judgment). Class counsel is paid by the "lodestar method." The lodestar method is the amount of hours the lawyers worked on the case, times a multiplier. The multiplier is used because of the risk the class counsel took in pursuing the case. Suing a big company can cost millions of dollars in non legal fees. The multiplier is necessary to cover those costs.

Profit = Capitalism (even if its a trial lawyer)

2005-02-23T08:09:00.000-05:00

Republicans believe profits are great... except if a lawyer makes the profit.

Why? Profits are not evil. Profits are necessary in a capitalist system. Doctors make profits, insurance companies make profits, oil companies make profits. That is not evil, it is capitalism.

All this begs a question.

Q: Why do many Republicans rile in anger because a lawyer made a profit?

A: Because they've been duped by the tort reformers. Very smart people are victims of their scheme. Our understanding of the tort system is based on deception, half-truths and outright lies about our civil justice system. Read this blog and you will understand your knowledge is most likely based on rumor and myth.

Trial lawyers are capitalists. No one should not be ashamed of our capitalist system.

Fast Facts About Litigation

2005-02-22T12:10:00.000-05:00

Proponents of so-called “tort reform” claim that litigation and the fear of litigation hinders job growth and stifles economic development. "Frivolous lawsuits are on the rise," businesses tell Congress, making it hard to compete and difficult to succeed. But studies by the federal government and neutral academic experts prove there is no statistical basis for these claims.
Federal Litigation is Decreasing
According to the Administrative Office of the U.S. Courts, tort actions in the U.S. District Courts dropped by 28% from 2002 to 2003.1
In addition, over the last five years federal civil filings have not only decreased 8%, but the percentage of civil filings that are personal injury cases has also declined to a mere 18.2%2
State Litigation is Decreasing
The Bureau of Justice Statistics (BJS), a division of the Department of Justice, performed a study of civil trials in state courts and found that the number of civil trials dropped by 47% between 1992 and 2001.3
The number of tort cases decreased 31.8% during the same period.4
The trend in award size was also down. The median inflation-adjusted award in all tort cases dropped 56.3% between 1992 and 2001 to $28,000.5
Lawsuit Filings are Decreasing
Tort filings have declined 4% since 1993.6
Contract filings, which are more likely to involve businesses than tort cases, rose by 21% over the same period.7
Automobile tort filings, which make up the majority of all tort claims, have fallen by 5% since 1993 and by 14% since their high in 1996.8
Medical malpractice filings per 100,000 population have fallen by 1% since 1998.9
Damage Awards are Down
Median payout for all tort cases dropped 56 percent between 1992 and 2001. According to the U.S. Department of Justice, the trend in damage size for tort cases is down. The median inflation-adjusted payout in all tort (personal injury) cases dropped 56.3% between 1992 and 2001 to $28,000.10
Asbestos Case Filings are Decreasing
Civil filings in the U.S. District Courts decreased 3 percent in 2003 to 256,858. This overall decline in filings resulted from an 83 percent reduction in asbestos cases filed.11
Class Action Cases are Rare
In its study of civil litigation in state courts, the BJS found only one case out of 11,908 cases that could truly be classified as a class action. That case, Bell v. Farmers Insurance Exchange, involved an insurance company’s attempt to classify claims’ representatives as administrative personnel in order to avoid paying them overtime wages.
Medical Malpractice Filings are Decreasing While Numbers of Doctors are Increasing
The number of physicians in the United States has steadily increased from 268 per 100,000 population in 1996 to 285 per 100,000 population in 2002.12
From 2000 through 2002, the three most recent years of data available, the rate of physicians has risen in every single state.13
Medical malpractice filings per 100,000 population have fallen by 1% since 1998.14

SOURCES:
1. Judicial Facts and Figures, Table 2.2, Administrative Office of the U.S. Courts
2. Federal Judicial Caseload Statistics, Judicial Caseload Indicators, 2002 & 2003, Administrative Office of the U.S. Courts
3. Civil Trial Cases and Verdicts in Large Counties, 2001, Thomas H. Cohen, Steven K. Smith, Bureau of Justice Statistics, 2004
4. Civil Trial Cases and Verdicts in Large Counties, 2001, Thomas H. Cohen, Steven K. Smith, Bureau of Justice Statistics, 2004 (Study examined state courts in the 75 largest counties in the country)
5. Civil Trial Cases and Verdicts in Large Counties, 2001, Thomas H. Cohen, Steven K. Smith, Bureau of Justice Statistics, 2004
6. Examining the Work of State Courts, 2003, at 23, National Center for State Courts, 2004.
7. Id. At 23.
8. Id. At 27.
9. Medical Malpractice Filings per 100,000 Population in 11 and 17 States, 1993-2002, National Center for State Courts, 2004 (unpublished, on file with author).
10. Civil Trial Cases and Verdicts in Large Counties, 2001, Bureau of Justice Statistics, U.S. Dept. of Justice, 2004]
11. Judicial Business, at 14, Administrative Office of the U.S. Courts. (In which the United States was not a party)
12. Health Care State Rankings, 1998 through 2004, "Rate of nonfederal physicians," Morgan Quinto.
13. Health Care State Rankings, 2000 through 2002, "Rate of nonfederal physicians," Morgan Quinto.
14. Medical Malpractice Filings per 100,000 Population in 11 and 17 States, 1993-2002, National Center for State Courts, 2004 (unpublished, on file with author).

Knowledge of McDonald's Coffee Case is based on McMyths

2005-02-21T17:12:00.000-05:00

The poster child of civil justice opponents is the "McDonald's coffee case." This case is often cited as the reason for "tort reform." Unfortunately, headlines and misrepresentations by civil justice's opponents misshaped public opinion about Stella Liebeck's case against McDonald's.

The public was led to believe that a woman driving a car was holding a cup of McDonald's coffee between her knees, spilled it, burned herself, and hired a trial lawyer who conned a jury into awarding her $2.86 million. But these are the facts:
1. Mrs. Liebeck's car was not moving; it was parked. Her son-in-law was driving. Not her.
2. The coffee was scalding (180-190 degrees) which can cook all layers of skin within 7 seconds. It was not as hot as normal coffee (135-140 degrees).
3. Mrs. Liebeck asked for payment of her medical bills before filing suit. She did not want to sue.
4. She spent eight days in the hospital and had painful skin grafts and debridement treatments.
5. Her genitalia and buttocks had third degree burns. The skin on those sensitive places of her body had to be peeled off, then other skin from her body had to be peeled off and then placed on her genitalia and buttocks.
6. McDonald's rejected her offer and then mediation, insisting on a trial.
7. McDonald's admitted its coffee was 40 to 50 degrees hotter than is fit for human consumption.
8. Mrs. Liebeck suffered third-degree burns over 6 percent of her body.
9. McDonald's knew more than 700 people, including babies, had been burned by its coffee.
10. McDonald's told the jury it wouldn't lower its coffee's temperature, prompting the jury to punish the corporation.
11. The jury awarded $200,000 for "out of pocket" economic damages, reduced to $160,000 because it found Mrs. Liebeck 20 percent at fault.
12. The jury's decision to punish McDonald's with $2.7 million in punitive damages for blatant misconduct was reasoned: That's two days of coffee sales for McDonald's.
13. At trial, Judge Robert Hayes Scott reduced the punitives to three times actual damages--$480,000.10. Post-verdict mediation was ordered, the case settled, and there was no appeal.11. McDonald's immediately lowered the temperature of its coffee.

That jury, after hearing all the facts and arguments, taught McDonald's--and, we hope, other corporations--a lesson: If you recklessly make or sell a dangerous product, you will be held accountable. McDonald's suffered substantial, but hardly outrageous, financial punishment for its irresponsible practices. Mrs. Liebeck was compensated for her injuries. And folks like you and me are less likely to get burned. That's exactly how our legal system is supposed to work. That's also why the insurance, tobacco, and other major industries want to change it. They think it works too well.

Source: Wall Street Journal, The complete text of the Wall Street Journal article (citation #1994 WL-WSJ 342815) may be purchased for $12 at http://www.westlaw.com/.

The Case FOR Punitive Damages

2005-02-21T16:51:00.000-05:00

Punitive damages are an unpredictable business expense for corporate misconduct. Corporations want Americans to think that huge punitive damages are awarded constantly, crippling businesses and raising consumer prices.
This is simply not true. Punitive damages are rare, especially in products liability cases. A Rand study showed that 47 percent are awarded in business-against-business litigation, versus less than 5 percent in products cases. And according to a study by Suffolk University law professor Michael Rustad, punitive damages were awarded in only 353 products liability cases (91 of them asbestos) between 1965 and 1990--an average of 14 per year or one per state every four years.
Most important, punitive damages bring safety. They have forced removal from the market of flammable children's pajamas, asbestos, tampons causing toxic shock syndrome, defective intrauterine contraceptive devices, and a host of hazardous drugs. They have forced car manufacturers to correct design defects like exploding gas tanks on Ford Pintos, slipping transmissions, and faulty minivan door latches.
Trial lawyers put our faith in the good judgment of juries. In cases where punitive damages may be applied, court instructions require jurors to use their good judgment--their common sense of right and wrong.
In America, a driver who kills someone can be imprisoned. But there are no prison terms for corporations that maim and kill. If a jury is convinced a corporate wrongdoer has been so irresponsible that it deserves punishment, the idea of Washington politicians stepping in to say "no" is repugnant.

Stella Awards = Urban Myth

2005-02-21T16:23:00.000-05:00

Snopes.com -- investigators of urban myths -- has determined that the "Stella Awards" are lies. Sadly, many people base the need for "tort reform" on these lies.

Instead of relying on email forwards and other myths of dubious origin, elected officials and voters should rely on facts.

http://www.snopes.com/legal/lawsuits.asp

Class Action Bill Merely Sweeps Class Actions Under the Rug of Federal Courts

2005-02-21T16:09:00.000-05:00

Tort “reformers” should address the merits of lawsuits, not merely where the lawsuit is filed or the amount of damages the plaintiff can receive.
The recent class action bill moves those lawsuits out of the state courthouse across the street into federal court. This will require more federal courtrooms, more court staff and more federal judges. It will increase the size and power of the federal government. Bigger government always requires higher taxes -- and that is “unRepublican.”
Additionally, the bill deprives states of their power over class actions and gives it to Washington. That is contrary to federalism – and that is “unRepublican.”
Tort reformers are increasing the size and power of government, and seizing local control from the states. Those have never been Republican ideals.
As a Republican, I will stand on principle and vote against tort “reformers” – no matter which political party they represent.

You can be a trial lawyer and a Republican

2005-02-21T16:05:00.000-05:00

I am a Republican and a trial lawyer. Many believe those two characteristics mix like fire and ice. This blog will debunk that myth.