The Oklahoma legislature is considering tort "reform" legislation like that which has and continues to be pushed around the country. As often is the case, local newspapers will editorialize on various issues being considered by their respective state legislatures. The Oklahoman is no different.
Unfortunately, the position taken by the editorialist, not identified, on the tort reform that is currently winding its way through Oklahoma’s legislature is just plain wrong and misleading. You can find the text of the editorial here. It appears under the masthead that reads: NewsOK – Powered By The Oklahoman * The State’s Most Trusted News. If that is the case, the trust of the paper’s readers is misplaced.
One focus of the current debate in Oklahoma centers around a proposed $250,000 cap on punitive damages. The editorial notes that and then offers this shockingly insensitive statement: "Once again the trial lawyers are playing on emotions with sad stories of victims and the greed of (fill in the blank) companies named as defendants." Wow. Those "victims" are real people who have been harmed by the actions or products of corporate defendants.
These victims could be you, your family member, your friend, your co-worker. Why shouldn’t victims be able to seek full recovery for their damages? And why shouldn’t the companies that engage in dangerous practices or those that place dangerous products into the stream of commerce be held accountable when they injure or kill people? Who is better able to bear the cost of the harm? The individual who can’t work because of their injuries, or the well insured conglomerate that makes millions from plying their trade?
Then the editorial notes that if greed is the issue, why don’t trial lawyers agree to a cap on theirs fees in order to put more money in the pockets of their clients? This highlights a lack of understanding of how the tort system works. The average person cannot afford to pay a lawyer by the hour to represent them. Corporations can afford representation, but most people cannot. That means that access to justice for the vast majority of people hinges on the willingness of an attorney to assume the risk of the case with the client. The attorney will have to bankroll the costs of the case and wait for the return of the costs and a fee until the end of a case, and then only if they are successful. The end of a case that was most likely defended with scorched earth tactics paid out of deep corporate pockets with no analysis of the merits in mind; the only goal is to keep money in the corporate coffers earning investment returns as long as possible. Under the circumstances, the contingency fee earned by those attorneys seeking justice is well earned and the only hope for all but the wealthiest of victims.
The mechanics of the contingency fee also debunks that most infamous of tort reform myths – the frivolous lawsuit. What attorney in their right mind is going to pour years of their time and tens of thousands of their own dollars into a frivolous case. It defies logic and it makes no business sense. It just doesn’t happen that often.
As if that is not enough, the editorial throws one garbage argument after another. The draconian tort reform put in place by Texas voters is extolled as "fixing" the problem of physician recruitment, "a huge problem in rural areas." Presumably this a reference to the so-called shortage of physicians who cannot afford malpractice insurance because lawsuits have pushed premiums too high for certain specialties or certain geographic areas. Study after study in states across the board with caps, including Utah, have shown that caps do nothing to reduce premiums. Texas is no different and Oklahoma won’t be either if the caps legislation passes.
