SAY GOOD-BYE TO YOUR DAY IN COURT - PART 2

By: Thomas McKelvey Cleaver

Note: You can read part 1 of Say Good-Bye to Your Day In Court By Clicking here.

Now that the Republicans have eviscerated your right to pursue a legal claim against a corporation for wrongdoing by use of class action lawsuits in state courts, the President is aiming his sights at curbing "frivolous" medical malpractice lawsuits.

I think the best overall comment on the President and the policies he announced in the State of the Union speech was made by Marshall Wittmann of the Democratic Leadership Council at his Bullmoose Blog
"Unfortunately, the President will offer a domestic program in his State of the Union address that will serve the narrow and partisan agenda of the Republican Party to comfort the comfortable and crush the domestic opposition. This President is completely incapable of a politics of national unity or greatness even amidst a long twilight struggle against our terrorist foes. The donor class must come first."

While many might think that the war in Iraq or the struggle over Social Security are the over-riding issues progressives need to take on, one that will have a far wider, far more thorough effect in changing life in America is what the President disingenuously calls "tort reform."

Bush is depending on the American people's general ignorance of what goes on in the public life of this country in order to bring this about - in the same way he depended on the general ignorance of foreign affairs by most Americans to turn the War On Terrorism into the War in Iraq. With all the anti-lawyer jokes that abound, and thirty years of right wing propaganda against "ambulance chasers," it just might work.

For the past fifty years, as the definition of actionable torts was reformed and expanded, the American civil justice system became the last and best line of defense for the average citizen against the abuse of corporate power and government policies that fail to protect the citizens they claim to be doing. When the courts began to allow class action lawsuits under the Federal Rules of Civil Procedure, more progress for society came into real day-to-day effect than had happened in the previous century.

Class action litigation forced the Veteran's Administration and the Congress to address the issue of the use of Agent Orange in Vietnam for veterans and their offspring suffering from the effects of dioxin exposure when the government claimed there was no such problem.

Class action litigation formed the basis of the civil rights movement that finally ended segregation and promoted the equal protection and treatment of women and minorities from their previous status as victims of allowable discrimination.

Class action litigation forced the American automobile industry to start producing safer cars.

Class action litigation brought the tobacco industry to its knees.

When one looks at that list, it's no wonder the Republican Party wanted to change the rules regarding class action lawsuits. Their "reform" - designed, they said, to prevent "frivolous lawsuits" from being instituted in jurisdictions that are "too friendly to plaintiffs" - was to federalize almost all class actions so that the already-overburdened federal courts would be the only forum.

It's no surprise that the interests supporting these "reforms" include the insurance industry.

I don't know about you, but my definition of "reform" doesn't include proposals that make things worse. I once endured five years of attempting to obtain redress from an insurance company that tried everything they could to destroy my credibility as to whether I had any injury to be compensated for, probably spending four times as much doing this as they would have paid out with just compensation for demonstrated losses, and finally made it clear they would never accept a final judgement within my lifetime, with the result they were able to settle for about ten cents on the dollar after they exhausted me.

The President is set to make his case to rein in "frivolous" medical malpractice lawsuits that result in millions of dollars of losses to doctors. As with his assertions that Iraq possessed weapons of mass destruction, this lie doesn't stand up under the light of day either.

There is no "malpractice crisis." The "crisis" the President is riding in to rescue is the crisis created by the pinstriped pimps of the insurance industry, whose brilliance and "business acumen" resulted in hundreds of millions of dollars in investment losses on the stock market (that wonderful place he wants to have you play in to create your retirement "nest egg."

A friend of mine - a "good conservative" (lifetime NRA member) Republican lawyer with 20 years' experience in tort litigation - recently pointed out some home truths about the "malpractice crisis." As he said, "The claims from the insurance companies that the payments are killing them are FALSE. But many are willing to believe them without proof. The insurance companies complain they have to raise premiums due to the litigious nature of our society. I don't believe that is true. The last time we went through this, in the 80's, the insurance companies had taken a bath in the real estate market. We're going through it now because they took a bath recently in their stock investments. All you have to do is look at their payouts relative to their income. For 2003 - the last year numbers are available - claim payments of medical malpractice suits were 1.5 percent of their gross budgets. They publicize rare and unusual cases as the norm, and folks believe it's true. "

He went on to say, "I have not seen one shred of empirical evidence that supports the insurance companies' position that their recent punitive premium increases are due to monetary judgments. In fact, there is substantial evidence that the insurance companies scream this mantra when their investments go sour. The last time we heard the insurance companies claiming they had to raise premiums due to legal judgments was in the 1980's. After Congress researched the issue, they concluded that the insurance companies' real problem was they had lost a bundle of money in the real estate market. The insurance companies go berserk when their investments tank. And their favorite scapegoat is the courts. If you know anything about insurance companies then you know their accounting practices are nothing short of bizarre when compared to other businesses. It is the only industry I know of that can enjoy substantial growth and claim a loss."

President Bush has been called the most partisan President in recent history. I personally think he can win the title hands down for all 43 presidencies in the country?s history. As Thomas B. Edsall and John F. Harris pointed out in the Washington Post on January 30, "... a recurring theme of many items on Bush's second-term domestic agenda is that if enacted, they would weaken political and financial pillars that have propped up Democrats for years, political strategists from both parties say... legislation putting caps on civil damage awards, for instance, would choke income to trial lawyers, among the most generous contributors to the Democratic Party." They go on to say, "What is notable about the Bush White House, some analysts believe, is the extent to which its agenda is crafted with an eye toward the long-term partisan implications."

John D. Podesta, who was chief of staff to President Clinton and is now President of the Center for American Progress, has said, "I think that most of their domestic agenda is driven and run by a political strategy as much as core fundamentals and belief. Why would you make this (a curb on lawsuits) the cause celebre? The notion that this is a key element of their economic program is laughable. It's important to them in both directions both in organizing core elements of their business and doctor communities, and at least undermining a financial base of the Democratic Party."

If you really want to know why George W. Bush is promoting the "legal crisis" the way he promoted the "Iraq WMD crisis," here is the reason: during the 2004 electoral cycle, lawyers gave Democrats $107.3 million according to the Center for Responsive Politics, and $39 million to Republicans. The Association of Trial Lawyers of America gave a total of $2.4 million, and 92 percent went to Democrats. Baron and Budd, a trial lawyer firm based in Dallas, gave 98 percent its $1.1 million in contributions to Democrats.

Looking at the President's campaigns for "domestic reform" - Social Security, class action lawsuits, medical malpractice claims - it's hard not to think of what H.L. Mencken had to say about American politics 80 years ago:

"The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary."

Bush crying "crisis" is like the little boy crying "wolf." There were no WMDs in Iraq, there is no Social Security crisis, and there is no medical malpractice crisis. All these "crises" are entirely of the President's own making.