Lawyers Are Blamed For Lawyering; Juries for Insane Awards; Plaintiffs For Being Frivolous. Our Legal System Seems To Be In Utter Chaos. Could Judges Themselves Be At The Heart Of The Problem?
Part 1 of 2
By Perry Hicks
Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or as Cicero and after him our Bracton have expressed it, sanctio justa, jubens honesta et prohibens contraria; it follows, that the primary and principal objects of the law are RIGHTS and WRONGS.
Sir William Blackstone
In February 2003, Judge Edith Jones of the 5th Circuit U.S. Court of Appeals addressed the Federalist Society of Harvard Law School. The theme of her address was how the integrity of law, with its transcendent connection to it religious roots, was fast disappearing. It would appear to Judge Jones that courts increasingly abandon what is morally right in favor of moral relativism. That is to say, courts increasingly act with political expediency. Accordingly, says Jones, legal philosophy has taken a nihilistic turn.
Publicly, trial lawyers will counter Jones’ concerns by telling you that civil litigation is really all about protecting their clients, vindicating victims of negligence, and yes, writing wrongs. However, there is increasingly evidence that litigation is more about money.
On a recent appearance on FOX News, Michigan attorney Jeffrey Fieger (made famous by his defense of assisted suicide doctor, Jack Kevorkian) lamented that Michigan’s cap on jury awards was hurting plaintiffs. In the case under discussion, a teen age girl had bled to death while having an abortion. Because she was so young, award cap guidelines would keep the maximum possible judgment down to only $300,000. Most attorneys in his state, so claimed Fieger, could not afford to handle such a case because expert witnesses had to be paid as well as a host of other expenses. Fieger said that he, having the largest product liability firm in Michigan, could afford the loss and would handle the abortion death case simply because it was the right thing to do.
Before you take the line that $300,000 is probably far more than the life insurance protecting many adults, consider this: If the award was capped to $300,000, then the standard attorney fee of 30% would garner Fieger only $100,000; and out of that he would have to cover the aforementioned expenses. The family would receive only $200,000; arguably a paltry sum for the loss of a child. But then, again, what is a person worth?
See how quickly we reduced the tragedy of the girl’s death to mere dollars and cents?
This inevitable reduction of life (or perhaps the quality of life) and death into merely a matter of business should be no surprise. In any civil suit, attorneys look to hang responsibility on whoever has the deepest pockets. In most cases, this means corporations.
And what could be wrong with that? Hitting corporations in the wallet is fair, isn’t it? After all, they “gouge” us to make enormous profits and what do we get in return; a few crummy jobs and the products and services sold to us?
Watch most any movie or television show and the antagonists are more than likely depicted as arrogant, greedy, vain, and quite craven white men representing some remote and wholly inhuman corporation. The clear message to viewers is that corporations deserve all the pain you can give them. Besides the other social baggage, sticking it to corporations is the politically correct thing to do.
At least that is the prevalent attitude engendered by unions, lawyers, and popular culture. Apologists for the tort system would say that truly outrageous verdicts are rare and the system does work to protect individuals from the outcomes of negligence and even criminal conduct.
Part of that may be true but increasingly so, it isn’t; particularly if product liability comes into play. Take, for example, fast food chain giant, McDonald’s; first it was the “reckless, callous and willful” way McDonald’s sold hot coffee and later it was the fat and calorie content of the food.
No one would argue that a steady diet of Big Macs and French fries could be good for you. Yet, New York attorney Samuel Hirsch filed suit on behalf of two Bronx teenagers claiming that McDonald’s made them fat. Hirsch had hoped that if U.S. District Court Judge Robert W. Sweet would accept the case, it could be…cha-ching… turned into a class action suit on behalf of all New York children under the age of 18.
In the end, Sweet did dismiss the suit but left open - dare I say a barn-sized - door giving the plaintiffs 30 days to readdress the issue that McDonald’s food posed dangers that were not commonly well known. My interpretation: Get to work with your research and find something, anything in McDonald’s processing that makes the food “more dangerous than the general public would expect”.
If Hirsch could have found that something- that anything - it would result in a torrent of litigation that would end eating out as we have come to know it. Can you say “brown bag it?” Indeed, it could ravish the entire grocery food industry.
By the way, part of the justification for the $2.7 million hot coffee jury award was that it equaled only two days of McDonald’s coffee sales.
Question of Who Pays
While speaking of New York, in that state a defendant with only 1 percent responsibility can be made to pay 100 percent of the injured party’s losses. Thus, corporations, being the deep pocket in most civil cases, must pay 100 percent of a judgment even though they had little or no responsibility for the offending act. Thus, Hirsch had reason to believe that McDonald’s would have to pay even though it was his clients who failed to inform themselves about, and conform to, healthy eating habits.
Indeed, this logic of assigning liability on even the flimsiest of grounds takes on a whole new meaning when one considers leases. Again, in New York, auto leasing companies can be held financially responsible for their customer’s accidents. That’s right; the leasing company, which has no control over, much less the ability to police the actions of its customers, is held liable for the actions of its customers.
As a result, General Motors, Ford Motor Company, and Daimler-Chrysler have stopped leasing cars in New York. Honda Motor Company suspended leasing for a time but has resumed with higher prices to cover the expected costs of litigation.
Making the decision to halt leasing did not come easily. New York is the second largest leasing market in the country. The corporations just didn’t loose in this case, but the consumer, who will either have to directly purchase or pay much higher payments for the business advantages of leasing.
As attorneys well know, products - however good they may be - are never perfect. This maxim opens the door to an endless line of often questionable product liability cases. In Part 2 we will continue our exploration of corporate raiding and examine several very disturbing cases involving Ford Motor Company.
Perry Hicks is a former Mississippi Coast resident and was a correspondent for the old Gulfport Star Journal. He has appeared on Fox News Channel’s “The O’Reilly Factor.” Perry has also hosted his own radio talk show on the auto industry with a mix of politics, and is a former Ford Motor Company technical trainer. He currently works as an Associate Professor of Automotive Technology at J. Sargeant Reynolds Community College in Richmond, VA.
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