• "Torts Need No Reform; Laws Already Protect Real Victims"
(Los Angeles Daily Journal, September 4, 2001).

In his jeremiad against the tort system ("Excessive Verdicts Affect Both ‘Real People' and ‘the Powerful,'") Jeremy B. Rosen writes that the tort system is out of control, rife with frivolous litigation, tilted against corporate defendants, and a burden to our economy. The facts prove the opposite. Only 2 percent of all cases filed in 1995 were tort cases. Corporate plaintiffs win 79% of the judgments in civil cases, compared with 62% for all plaintiffs; as defendants, corporations win 62% of the time, compared with 33% for all defendants. During the period between 1965 and 1990, there were a total of 355 reported product liability verdicts with punitive damages (91 of which were in the busy asbestos area), and excluding asbestos cases there were an average of less than eleven punitive damages verdicts per year in the entire nation in such cases in both federal and state courts. Since 1985, the cost of tort liability has increased no faster than the growth of the overall economy, which is the most prosperous and efficient on earth.

These data hardly suggest a system out of control, rife with litigation, tilted against corporate defendants, or a burden to our economy — quite the contrary. Thus the supposed need for the "reforms" Mr. Rosen proposes is a myth, and the "reforms" themselves harmful to ordinary Americans.

Rosen advocates imposition of the "English rule" (loser pays), an idea which has been so thoroughly debunked that many tort deform advocates no longer even argue for it. Abner J. Mikva (who has served as a congressman, a federal judge, and White House counsel) writes, "If the English rule had been in effect here, none of the civil rights cases would have been brought. If they had lost, a single lawsuit would have wiped out their treasuries." Judge Mikva knows what he's talking about. Loser pays is a practical deterrent to litigation by individual litigants. It does not deter the rich and powerful, or the corporate executive whose own money is not at risk. Rosen knows this, and knows also that there are existing remedies for punishing frivolous litigation (Rule 11, for example).

Rosen asks us to believe that "real people suffer" when defendants "incur substantial litigation costs . . ." The "real people" Rosen transparently is talking about are entities he and his firm actually represent. Here's a short list of those "real people": Shell Oil Co.; Montrose Chemical Co.; Manufacturers Life Insurance Co.; Vons Companies, Inc; and the "77 cities" and "Central City Association" Mr. Rosen lists as his clients in his Martindale-Hubbell professional biography. (I expect Rosen has faxed to his clients a copy of his op-ed piece already, with a self-satisfied cover letter.) Of course, they are large corporations and institutions who would benefit immediately by enactment of the "reforms" Rosen proposes.

Rosen correctly argues that the sort of tort deform he proposes is often portrayed as an "attempt to help out special powerful interests at the expense of ‘the people.'" What Rosen doesn't explain is why this portrayal is wrong. It isn't wrong at all; in fact, it's entirely fair. Of course large corporations and institutions want punitive damages limited, juries neutered, plaintiffs' lawyers paid less (all measures Rosen advocates). That's why they advocate such "reforms." If you represented Philip Morris or General Motors, it would be great if you could sharply limit the jury's ability to award punitive damages. Or have the jury's verdict set aside as the product of a judgment clouded by emotions. Or prevent Michael Piuze and Brian Panish from collecting contingent fees. It would be great for your clients' interests, and not because you wanted to help any "real people" other than your own clients.

Hurting corporations means hurting employees, Rosen writes; the employees pay in the form of "layoffs, lower pay and fewer benefits." This is a conclusion in search of data that would support it. At best it is gross exaggeration. I've heard of no layoffs at Philip Morris in the wake of the jury's verdict in the Boeken case, or at General Motors in the wake of the Anderson verdict. Nor have I heard of any Munger Tolles clients instituting layoffs or cutting employee benefits in the wake of adverse jury verdicts or settlements. (If there have been some, Rosen doesn't identify any.) The reason is simple: large corporations insure against and budget for litigation.

Granted, there are companies who have gone under because of litigation. Manville couldn't withstand the mammoth liability it faced for poisoning thousands of people with asbestos, so it was forced out of business, and its employees had to go look for work somewhere else. This was as it should have been. In Rosen's brave new world, such a scenario is an unacceptable cost: no corporation must ever be permitted to suffer diminished profits, layoffs, or (God forbid) failure for being held accountable for harming people. Manufacturers of carcinogens will enjoy freedom from liability so that their employees can have lifetime employment in Rosen's world. A boon for management, shareholders, and employees; to hell with the victims. (They're not "real people" whose human and financial losses count in Rosen's calculus.)

The question Rosen refuses to acknowledge (much less answer) is the troubling one which must be answered: Who pays for torts if tortfeasors don't? The victims do, of course. Rosen doesn't say so, but they are the only ones left with the tab once the tortfeasor skates in the Jeremy Rosen world. That world is a Dickensian one.

Don't get me wrong. I don't dislike corporations, institutions, or municipalities; the contrary is true. I've counted several of them among my clients over the years, and have liked every one I've represented. What I detest is the sort of self-interested nonsense and pious myth-making masquerading as logic and compassion for "real people" as are contained in Rosen's prose. That prose unfortunately is representative of much of the propaganda churned out by the tort deform lobby. If you represent corporations or large institutions, you should have the honesty and skill to win by the rules (the American rule, the law permitting large punitive damages where warranted, and the rules permitting contingent fees), or else settle your cases. Don't try to change the rules because you don't like the outcomes they give your clients and their ilk. If you don't like the strike zone, perhaps it's time to start swinging at those high strikes instead of whining about how the zone is defined..

"Hopefully [sic] future debates over potential reforms will focus on the actual merits of the proposals," Rosen writes. I hope that is the case; of course our system isn't perfect. Unfortunately, Rosen, despite his hope that the merits be debated, isn't focused on the merits at all. He has sung for his supper.

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