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Litigative Lunacies

ISSUE:  Winter 1988
The Blame Game. By Jeffrey O’Connell and C. Brian Kelly. Lexington Books. $12.95 paper.

Lawyers are advocates, generally for clients but occasionally for causes. Jeffrey O’Connell belongs to the latter group, with a notable twist to his personal theme. O’Connell’s raison d’être is an attack on the very system from which he springs—the American legal system.

O’Connell, a University of Virginia law professor who co-authored with journalist C. Brian Kelly The Blame Game, argues that litigation arising from accidents and injury harms more than helps its victims. The legal system is “a game of chance,” says O’Connell, marked by hugh costs, inordinate delays, and haphazard dispensation of justice. Those involved suffer, he continues, but so does society at large. O’Connell blames exhorbitant legal fees and record-breaking jury verdicts for the upward spiral of insurance costs, a spiral whose end point has exceeded what anyone ever dreamed possible.

The situation begs for reform, a plea emanating not only from the authors but also, as they point out, from a wide spectrum of our populace. “The result is widespread alarm and cries for reform of tort law throughout the United States,” say O’Connell and Kelly in the introduction to their book. The authors are right on that point. Even the American Bar Association, a conservative and self-protective organization, officially joined the fray at its New Orleans midyear meeting attended by nearly 4,000 lawyers last February. “The obligation of the profession is to get its own house in order,” proclaimed New York University law school professor Robert B. McKay, who chairs the ABA’s Action Commission to Improve the Tort Liability System. The ABA’s request for greater judicial scrutiny of damage awards was mild, however, in contrast with the strict monetary caps that a growing number of state legislatures are imposing. “Even the Reagan administration has proposed [tort] reforms, despite a conservative federal administration’s natural reluctance to invade a domain traditionally controlled by states’ rights,” write O’Connell and Kelly.

In The Blame Game, the authors explore the most abhorrent aspects of tort litigation—the process of proving that someone else is at fault for an injury and thus liable for damages—including long time periods for resolving a claim either through settlement or trial, the trauma inherent in negotiating a satisfactory monetary settlement, and the manipulation of juries by seasoned trial attorneys. Such nightmarish themes are not foreign to the consumer of print and broadcast media because the media over recent years have reported with ever increasing detail and frequency the more dramatic cases and trials. Tales of heart-rending wrongdoing and tragedy, of finger-pointing litigants and lawyers, of emotional courtroom testimony, and of record-setting verdicts are regular fare in newspapers, magazines, and newscasts.

In fact, it is these same tales that provide the grist for O’Connell and Kelly’s snappily written and convincing argument for change. They quote heavily from news accounts in publications ranging from The Seattle Times to The Washington Post. Their opening chapter, for example, tells the story of Chris Thompson, a six-foot-one high school sophomore and star varsity fullback who snapped his spinal cord in a 1975 football game, an injury that left him a quadriplegic. Thompson and his mother sued the Seattle School District, the other team’s neighboring school district, the Washington Interscholastic Athletic Association, and the makers of Thompson’s football helmet. Three Seattle newspapers proclaimed the $6.4 million jury verdict against those defendants who did not settle before the trial. But before the case could work itself through the appeals, on up to the Supreme Court of Washington, the remaining parties settled, for close to $4 million. It took eight years “to decide whether insurance money was to be paid to a tragically injured boy,” write O’Connell and Kelly. “Some insurance. Some law.”

In their chapter “Unsettling Settlements,” O’Connell and Kelly cite the case of 21-year-old Gail Kalmowitz, who was allegedly administered too much oxygen as a premature baby, causing her to be blind for life. Minutes before the jury was to render its verdict in Kalmowitz’s $2 million medical malpractice suit, she cried out “I want to settle,” and accepted $165,000. According to The New York Times, relay O’Connell and Kelly, the jurors told the weeping woman, “You shouldn’t have done it. You should have gone all the way. Our hearts were with you.” They were prepared, they said, to give her an award of $900,000.

In another chapter, “The Litigation Lottery,” O’Connell and Kelly refer to a case detailed in The Washington Post: Nineteen-year-old Gory Watts rode his motorcycle into the concrete median of a heavily traveled highway. He wore a helmet, as required by law, but it cracked in the fall, leaving Watts with brain damage and partial paralysis. The family sued the maker of the helmet for $10 million, but lost. Two hours later, Watts’ mother shot her son and herself to death.

Such stories, which O’Connell and Kelly so succinctly summarize, with their human toll intact, are enough to make the reader of The Blame Game either weep or throw down the book and scream with anger and frustration at a legal system that can add such agony to already immeasurable suffering. But, to make sure that their point is firmly made, O’Connell and Kelly take out after trial lawyers themselves and the tactics these courtroom gladiators use to convince jurors to vote in their favor. “Making lasting impressions on these supposedly fickle people is the name of the game—as almost any student of the trial trade knows,” write O’Connell and Kelly. They cite attorney F. Lee Bailey’s bringing his wealthy client Patty Hearst into the courtroom in oversized clothing to “minimize her glamor and render her small and pathetic-looking.” In a personal liability case, the authors tell of a mother who, at her lawyer’s request, removed her young daughter’s glass eye before a jury deliberating the girl’s injury. Today attorneys also use more sophisticated tactics of strategy and manipulation, such as mock juries and courtroom simulations; community surveys to assist injury selection; and the use of expert witnesses. “It would be nice to think that juries understand their job, overcome their prejudices, expertly judge the credibility of witnesses, sift through the evidence, and collectively apply the law to reach fair verdicts,” write O’Connell and Kelly. “It always was nice to think such rosy thoughts, even when, in fact, practice often proved otherwise. But now the social scientists have arrived in force, with the scientific message that the “nice” assumptions of trial practice indeed do not always bear up.”

In still another chapter, “From Wrecks to Riches,” O’Connell and Kelly portray the dregs of the legal profession, the so-called “ambulance chasers” who directly solicit business from accident victims at the time when they are most vulnerable. These lawyers penetrate police lines at accident sites by posing as emergency personnel; worse yet, “they have been known to trigger auto accidents deliberately, seriously injuring innocent motorists and their passengers,” write O’Connell and Kelly. “In New York and Chicago, as elsewhere in America, there are honest doctors, lawyers, and accident victims—and many a personal injury suit or settlement has good solid evidence behind it,” concede the authors. But they want a system that erases all opportunity for dishonesty and greed.

What should be done about tort litigation as it exists today? There are wrongs to redress, O’Connell and Kelly admit, and the wrongdoers from whom the personal injury litigation system seeks redress should not go off scot-free. “Unquestionably, the availability of civil remedies to redeem such wrongs remains very vital, from the point of view of both basic justice and basic economics,” O’Connell and Kelly concur. Still, they find suggestions currently bandied about— for example, limiting pain-and-suffering awards, eliminating or severely curbing occasions when punitive damages can be awarded, and limiting plaintiffs’ lawyers’ contingent fees to curb incentives for litigation—to be totally inadequate. “A “solution” to the problems created by current tort law that merely futher restricts compensation for claims is a questionable solution indeed,” they maintain.

Instead, O’Connell—who helped father no-fault automobile insurance—advocates a new system, one which, like the no-fault automobile approach, would offer all victims payment for economic loss, but not for pain and suffering. Claimants who accept such payment from a defendant would automatically forego any right to sue for additional compensation. The Blame Game is not the first forum in which O’Connell has proposed this solution, a plan he hopes to implement through new legislation. A captivating speaker, one whose gregarious and aimiable nature makes him a popular guest, O’Connell has been speaking and working with various groups around the country for some years now, seeking to convince them that his plan is the ultimate answer for tort reform.

Such a remodeling of the tort system, says O’Connell, can bring it more in line with its philosophical goals. He agrees with trial lawyers’ point that the tort system “is sensible in that it makes a wrongdoer pay an innocent victim of his wrongdoing.” But the problem is, as the authors point out in their concluding chapter, “that accidents happen under very complex circumstances. They happen in the split-second agony of an automobile collision or during the organized chaos of surgery. They happened when a toaster explodes or when an industrial machine malfunctions. The interconnection between a malfunctioning machine or improper procedure and the individual who is hurt can be very difficult to unravel.” Finding fault is both expensive and cumbersome. On top of that, determining the monetary vale of pain and suffering—of an aching back or a scar on a forehead—is impossible, say O’Connell and Kelly.

Despite this and other convincing arguments, the authors know better than anyone that they face formidable opponents for implementing their ideas. Trial lawyers, many of whom are active in political campaigns, are powerful lobbyists. And, O’Connell and Kelly admit, “the argument lawyers make in defense of the present system is not, on its face, pure nonsense. The way the tort system works may be nonsense— but not its underlying theory. Lawyers argue that it’s immoral to treat the drunk and the sober, the careful and the careless equally.” Precisely because trial lawyers are so politically powerful and because the arguments for reform are so complex, O’Connell and Kelly are less than sanguine about the prospects of legislative reform. Short of that, they suggest a contractual arrangement that guarantees payment for economic loss in case of injury, if the injured person foregoes all other claims. O’Connell designed such a contract for high schools and their football players. The contracts are now used in 48 states, covering more than 60 percent of all high schools.

Whatever the approach, O’Connell and Kelly are not alone in their quest for alternatives to our nation’s tort system. Yet their crusade is only one side of the larger debate. Trial attorneys across the nation defend their system from attack, arguing that it properly compensates the injured, holds wrongdoers fully accountable, and, under the contingent-fee system, permits any claimant to have his or her constitutionally guaranteed day in court. On a societal level, they say, the system deters irresponsible and negligent behavior, and encourages responsibility and reasonableness.

The Blame Game is an enticing piece of work, combining storytelling with forceful advocacy. As plaintiffs against the personal injury litigation system, O’Connell and Kelly plead their case well, and their audience is naturally sympathetic. But the defendants—the trial bar and other proponents of the tort system as it now stands—do not get equal time.


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