Edwards - King of Torts
By Ryan Walsh (07/12/04)
Kerry picked Edwards, we are told, to bring “balance” to the ticket. Not ideological balance, of course, since the nonpartisan National Journal rates Kerry the most liberal Senator on the Hill and Edwards the fourth, ahead of both Hillary Clinton and Ted Kennedy. No, the balance is more stylistic: while Kerry exudes all the excitement and vigor of a piece of fossilized bone, Edwards brings energy, boyish charm, and an adorable Southern drawl.
But what does Edwards truly represent? Some say the “charismatic” wing of the Democratic Party, in contradistinction to the charis-maniac wing of “Iowa Scream Dean” and the increasingly insane Al Gore. Others say Edwards, a “personal-injury” lawyer, represents disadvantaged America.
In fact, Edwards represents a more influential, not-so-pleasant interest group: trial lawyers. Since trial lawyers (or more accurately, plaintiff lawyers) constitute the largest contributing group to the Democratic Party, it’s hardly shocking that they make up 95 percent of Edward’s top donors.
If there is any good to come from the Edwards VP pick, it is that the debate over tort form has returned to center stage. So let’s look at it:
It is estimated that direct tort costs constitute over 2 percent of the GDP—over $200 billion a year. With the crescendo of class-action lawsuits in the 90s, this number continues to grow. The indirect costs of frivolous lawsuits, however, run even deeper. Medical malpractice suits, for example, force doctors to test patients for a whole gamut of rare diseases, since if one weren’t detected, a malpractice suit could wipe out an entire medical practice. Faced with this danger, doctors must pay exorbitant malpractice insurance premiums, which only increase over time. The threat of lawsuits afflicts the pharmaceutical industry, too. Because of the likely risk of litigation based on some obscure premise or slightly inherent risk, drug companies fear introducing new drugs into the market.
But aren’t out-of-control tort costs the fault of easily swayed judges and juries?
In a class-action suit, a trial lawyer represents an extensive segment of plaintiffs. Since the plaintiffs live in different towns, counties, and states, the lawyer can choose the jurisdiction—in effect, the court—that is most favorable. As legal policy expert Jim Copland explains, “…the best forum winds up being a state ‘magnet court’ well known for its hospitable treatment of class-action lawsuits.” Therefore, according to veteran tort lawyer Dickie Scruggs, “Any lawyer fresh out of law school can walk in there and win the case, so it doesn't matter what the evidence or the law is." It seems law and evidence have become irrelevant in the place they should be ascribed the most importance.
As a trial lawyer, John Edwards excelled in suing obstetricians on behalf of mothers of children with cerebral palsy. According to his so-called scientific research, cerebral palsy could’ve been avoided in most cases had an obstetrician performed an immediate C-section. But research over the past 20 years has destroyed that theory, proving instead that cerebral palsy develops much earlier in the pregnancy.
The Class Action Fairness Act would have transferred class-action jurisdiction to federal courts in suits over a certain amount of money, preventing unscrupulous plaintiff lawyers (Do I repeat myself?) from jurisdiction shopping. Sadly, the Senate defeated the bill last week.
Whether he likes it or not, John Edwards is the de facto national representative of Trial Lawyers, Inc. If you think that’s a good thing, you’ve been reading too many John Grisham novels.
(Printer friendly version) Email: Ryan Walsh
