Don't Kill The Lawyers Yet

Bashing the lawyers
BY BRUCE MCMATH SPECIAL TO THE DEMOCRAT-GAZETTE
I see that the Democrat-Gazette has picked up the "It’s the greedy trial lawyers’ fault" chorus. This oldie goldie public relations ditty is periodically re-released by the liability insurance industry when it needs a scapegoat to cover high and rising insurance premiums, in this instance medical malpractice.
Hearing this refrain brings to mind the Shakespearean quote, "First, we will kill all the lawyers," which one often sees derisively displayed. What is rarely noted is that Dick the Butcher, who uttered those words, was a scoundrel and a rogue. The lawyers he would kill were members of society standing firm against chaos and tyranny.
Today, Dick the Butcher takes the form of "think tanks" funded by the liability insurance industry, pharmaceutical and chemical manufacturers, and others who desire to be freed of their responsibility to consider the consumer or society’s interest, not just their profits. While they accuse the "greedy trial lawyers," it is the law and individual rights at which they are aiming. The goal is to replace the common law with immunizing legislation purchased with political favors.
Convincing the average citizen that it is in his interest to restrict or eliminate his common law rights when injured by another’s conduct would obviously be difficult if honestly presented. The clever use of lawyers, with their unpopular image, as surrogates for those rights makes it feasible.
The trial lawyer’s image, at least in part, is derived from the fact that the law works on the dark side of human conduct-from insurance companies and financial institutions that bilk the old and unsophisticated to corporations that knowingly sell defectively designed vehicles because the market cycle demands a new product on time; from the sexual misconduct of ministers to an industry selling addictive toxins under false pretenses.
People don’t want to hear about these things, they don’t want to think they happen. However necessary the work, that trial lawyers make their livings dealing with such maters makes them easy public relations targets.
It is well and good to encourage morality and ethics in corporate and individual conduct, but society can never assume that it will universally take place. The genius of the free-market system is that it harnesses the inevitable impulse to pursue self-interest. This, however, is also its great weakness.
There will always be those, especially in the corporate setting, who will have trouble discerning the proper limits of this pursuit. Only a system of justice that makes a reckoning a probability can provide the moral corporate employee or officer the rationale to insist upon restraint in corporate behavior. Adam Smith’s invisible hand must, in fact, be a pair of hands if society is to uniformly benefit-one hand to do the nation’s commerce, the other to wash the former of its excesses and transgressions.
Our civil judicial system and the common law upon which it is based make it possible for our diverse, complex, democratic, free-market society to function. Unnecessary personal injury, fraud on consumers and investors, and conversion of the environment and other community resources all represent a cost to society, not just to the individuals who are the initial victims. Civil lawsuits measure the losses caused by destructive conduct and shift the loss to the source; they don’t cause that loss. This function will always make the law unpopular with those held responsible, and the latter will never cease to try and blame trial lawyers for the harm caused by their own conduct.
Medical malpractice insurance premiums are currently rising for two basic reasons. One is cyclical and relates to the interplay of the insurance industry‘s underwriting and premium practices and the difficult investment market the industry currently faces. The second is a long-term problem:
There is far too much malpractice.
A Harvard medical study has reported that less than one in 10 acts of malpractice is ever compensated. Other studies have confirmed this, and that most acts of medical negligence are from repeat offenders. Medical malpractice results in real losses to real people, medical bill and lost wages, loss of life or quality of life-losses not caused by lawsuits but measured by them.
The civil justice system is telling us that our health care system has problems. For sure, there is room for improvement in the civil justice system.
However, improvements there would on balance uncover more, not less medical malpractice costs. We can cut the tongue out of the messenger by closing the courthouse door on victims and pretending that these losses are not happening, or we can get serious about addressing the real problems.
Unfortunately, the solutions are not simple. They are entwined in issues related to the regulation of the insurance industry and the practice of medicine. They relate to how we pay for and ration health care; false economies of staffing; and inadequate pay for medical support staff.
Perhaps this inherent complexity explains the willingness of some to latch on to simpler explanations. That solutions will involve challenging a lot of special interests explains why we are going to continue to hear that it is the "greedy lawyers’ fault."
Bruce McMath is a past president of the Arkansas Trial Lawyers Association and a past member of the Board of Governors of the American Association of Trial Lawyers. He is a partner in McMath Woods, P.A., in Little Rock.