Trial – David S. Casey, Jr.
As last year came to a close, I received an e-mail message that described 2003 as the year of the greatest assault on the U.S. civil justice system in history. From my perspective, it certainly appeared that way. Without trial lawyers, what would our country be like? That question makes me think of the experience of George Bailey, Jimmy Stewart’s character in the classic film “It’s a Wonderful Life.”
We all know the story: At a moment of crisis, George can’t see the good he has done for his family and community, and he is tempted to give up. The revelation that his life and work have made a difference gives him hope and a renewed sense of purpose.
Like George, we occasionally need to be reminded of the good we have done. For years, we have made insurers pay losses when they are due. We have forced auto makers to design safer cars, minimizing injuries and saving innumerable lives. Because of our work, industrial polluters have compensated those they have harmed and cleaned up the environment. Legislation didn’t change tobacco industry marketing campaigns aimed at children; trial lawyers did. Where sexual abusers have preyed on innocent victims—in the therapist’s office, the workplace, or the church—trial lawyers have forced institutional changes and held the abusers accountable.
America’s standards for product safety and professional conduct are among the highest in the world. But without trial lawyers, America would be more like Pottersville—that is, Bedford Falls without George Bailey.
Safety and responsibility
Many in positions of power do not like the scrutiny that litigation brings. These powerful interests seek to close the doors of the justice system to the public. They want to dismantle a legal system that is the envy of the world.
A U.S. senator once told a corporate CEO that our civil justice system is the “moral compass” for American business because it compels companies to integrate safety and responsibility into their culture. We have seen what happens when companies ignore safety and environmental considerations in pursuit of profit: Society pays, in increased health care costs and decreased productivity.
Our colleague Joe Jamail—in his autobiography, Lawyer: My Trials and Jubilations—describes a verdict (one of many in his extraordinary career) that not only compensated his client but forced a product recall. He writes:
This is the exercise of law at its most fundamental level, the protection of the public interest. If there is a distinction I believe justifies my existence on Earth, it is this: I am personally responsible for three national recalls—by Remington Arms, Bonda, and Parlodel drugs. They can engrave that on my tombstone.
Reports of civil lawsuits that have resulted in more responsible business practices and a safer society would fill volumes. Consider these: A 1970 case of a four-year-old burned badly by highly flammable pajamas led to congressional action setting tougher standards. Injuries and deaths caused by the Dalkon Shield intrauterine device gave rise to litigation that forced the manufacturer, A.H. Robins Co., to remove its product from the market. As a result of a 1998 lawsuit brought by a Boeing employee who contracted leukemia after continual exposure to electromagnetic pulse radiation, the company implemented safety procedures to protect others. And most recently, after numerous lawsuits were filed seeking compensation for deaths linked to the dietary supplement ephedra, the FDA banned the product.
Those who attack civil justice do not understand that they are attacking the legal system that protects them. In a now well-known ironic tragedy, one tort “reform” advocate learned this the hard way: A medical association lobbyist, Frank Cornelius, who had worked for passage of a medical malpractice damages cap in Indiana in the 1970s, later became a victim of medical negligence. When he sought to hold those who had injured him accountable, the very law he had helped enact limited his rights. He worked to change that law until his death.
Many legislators support tort “reform” except when they or their families become the victims of wrongdoing—then they don’t hesitate to turn to the courts for justice. This is hypocrisy at its worst.
Consumers do not want their rights restricted for the sake of greater corporate profits. What they do want are sensible laws and a jury system, one not subject to political pressure, where people like themselves can make reasoned decisions. They recognize that jurors, who are regularly entrusted with deciding whether a criminal defendant will live or die, are clearly capable of sorting through complex issues to make fair decisions in civil cases.
The past year was a challenging one, and 2004 will probably bring ever greater threats to the civil justice system. The attacks will stop only if trial lawyers stop representing people harmed by powerful interests. As long as we remain dedicated to the public good, that won’t happen, and ATLA will continue leading the charge against every assault on citizens’ rights.
