Monday, October 15, 2007

Who Joins Edwards In Call For End To Frivolous Lawsuits?

Former Senator John Edwards' recent call for an end to frivolous lawsuits may have been taken with a grain of salt ... or a loud guffaw ... or a "what did I just hear or read?" reaction.

From AP story:

"Democratic presidential candidate John Edwards, who made his fortune as a trial lawyer, says attorneys should have to show their medical malpractice cases have merit before filing them.

"He also said attorneys with a history of frivolous suits should be barred from filing new cases."
While Edwards' comments may have surprised some -- in both parties -- and raised eyebrows, they do provide a hint that civil justice reform could be one of the sleeper issues in the 2008 presidential race.

The growing call for civil justice reform throughout the United States seems to be catching the attention of former trial lawyer Edwards and several of this competitors.

We tried to do a quick -- certainly not exhaustive -- search of what the candidates in both parties have been saying or writing on civil justice reform issues during the current campaign, and perhaps in the past.

We'll do a more comprehensive analysis closer to the Illinois primary on February 5.

Democrats:

John Edwards is a former trial lawyer and his comments latest comments provide no comfort that he has changed his philosophy. But he does understand he needs to change the perception of John Edwards, trial lawyer.

Full Story: Edwards Seeks End To Frivolous Lawsuits

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Barack Obama, current U.S. Senator from Illinois and former Illinois state senator, has a track record of supporting some civil justice reform proposals, including voting for the federal Class Action Fairness Act and previously supporting some reform measures in the Illinois General Assembly. It would be a stretch, however, to view his as a civil justice reform advocate.

Comments Re: Obama on Point of Law.

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Apparent front-runner Hillary Clinton, an Illinois native, has been viewed as a health care reformer but that does not include any reference to civil justice reform, at least according to her campaign website.

Hillary Clinton Campaign Website

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Republicans:

Predictably, the Republican candidates are more supportive of civil justice reform proposals, at least publicly.

Here are a few indications of where the front-runners (the four candidates considered in the lead for the Republican nomination by a consensus of polls).

Mitt Romney:

From the Romney website, excerpts from a speech:

Governor Romney Believes America Needs National Tort Reform, Not Reform State-By-State. "Another burden on our economic future is our out-of-control tort system. Last year, U.S. corporations spent more money on tort claims than they did on R&D. If innovation is the key to our long term leadership, then some tort lawyers are cashing out our country's future. I spoke with one member of the plaintiff's bar the other day. He said that the tort lawyers are ok with state reform, but not national reform. You know what state level tort reform means - it means that as long as there is one lawsuit-friendly state, they can sue almost any major, deep-pocketed company in America. No thanks, America needs national tort reform."

Link To Mitt Romney Website.

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Rudolph Giuliani

From the Giuliani website:

Policy on Ending Frivolous Lawsuits:

Discourage Frivolous Suits: Reform the federal court rules to give courts more discretion to quickly dismiss lawsuits through summary judgment. Shift the cost of excessive discovery outside the presumptive limits to the party requesting it, and reform the rules to require losers to pay costs and fees if they cannot meet the burden of demonstrating a good faith basis for the suit.

Reduce the Burden and Cost of Civil Lawsuits: Reform the civil discovery rules to lower presumptive discovery limits, institute strict time limits for the discovery process, require more court supervision of burdensome requests, impose real sanctions for discovery abuses, and encourage all courts to hear cases as quickly as the so-called "Rocket Docket."

Encourage Fast Resolution of Suits Through Alternative Dispute Resolution: We should explore various options for alternative dispute resolution in an effort to alleviate court congestion.
Cap Non-Economic and Punitive Damages: Set limits on punitive damages and non-economic damages and set a higher burden of proof on plaintiffs seeking non-economic damages in cases in which the defendant had already offered to pay economic damages.

Link To Giuliani Website.

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John McCain

From The Club For Growth:

Senator McCain's record on tort reform is generally positive. These votes include:

    Sponsored the Class Action Fairness Act of 2005 which sought to curb lawsuits by shifting suits from state to federal courts, by requiring judges to review all coupon settlements, and by limiting attorneys' fees in non-cash settlements

    Voted for a bill that would bar lawsuits against manufacturers, distributors, dealers and importers of firearms

    Voted for a bill that would place caps on damage awards in medical malpractice suits against obstetricians and gynecologists

    Voted for a motion to proceed to a bill that would cap non-economic and punitive damages in medical malpractice suits
This generally positive record, however, is tarnished by Senator McCain's sponsoring of and outspoken support for the Patients' Bill of Rights, which encouraged an increase in the number of frivolous lawsuits filed against healthcare providers. He also voted against the Litigation Uniform Standards Act, which limited the conduct of securities class actions under state law.

Club For Growth Comments On McCain.

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Fred Thompson

From The Club For Growth:

Thompson's position on tort reform is a bit of an enigma. At first glance, his record contains a mix of both good and bad votes, though many of these bad votes are better understood in light of Thompson's federalist philosophy. To his credit, this former trial lawyer voted against the McCain-Kennedy Patients' Bill of Rights; to exempt pro bono healthcare professionals from malpractice liability; and for the Securities Litigation Uniform Standards Act, requiring all class action securities lawsuits involving more than 50 parties to be filed in federal court.

The majority of his votes though, were against measures seeking to discourage runaway lawsuits. He voted multiple times against amendments to provide liability protection and limit damages, including:

    Voted to kill an amendment that would limit punitive damages to twice the sum of compensatory damages; place limits on attorney's fees; and require lawsuits to be filed within two years of the discovery of an injury

    Voted against a bill that would cap the liability of businesses from damage caused by Y2K-related computer problems, though Thompson voted for a conference version of the bill that extended liability protection to businesses with 50 employees or less

    Was 1 of 7 Republicans to vote against a Dole amendment to limit punitive damages in civil cases

    Voted to table an amendment to limit non-economic damages for pain and suffering in medical malpractice suits

    Voted to table an amendment to raise the standards to require "clear and convincing" evidence in medical malpractice cases involving labor or delivery of a baby if the doctor had not provided prenatal care

    Thompson's belief in a hands-off federal government is sincere to the point where he was the only senator to vote against liability protection for teachers and volunteers. As Thompson explained numerous times during his eight years, these votes and others stemmed from a firm belief that the federal government should not meddle in matters best left to the states.
In a recent blog post in defense of his 1998 vote against a cap on attorney's fees, he argued that "I did not come to the Senate to review billing records from lawyers in private lawsuits. For the record, I oppose the federal regulation of any fees negotiated by two competent parties at the state and local level. This goes for lawyers, doctors, butchers, bakers, or the occasional candlestick maker. Even if excessive fees offend congressional sensibilities, there are other remedies that make far more sense than the federal one."

At the same time, Thompson's votes demonstrate an inconsistency that calls into question his federalism defense. While he voted for the Securities Litigation Uniform Standards Act, he also supported a Sarbanes amendment that would have weakened the Act by narrowing the definition of class action suits. Thompson opposed several bills capping punitive damage awards, but voted for the Common Sense Product Liability and Legal Reform Act of 1995 that did just that. He voted against liability protection for volunteers and teachers but for protection for pro bono healthcare professionals.

While Thompson's federalism argument is laudable as a means of reducing the impact of the federal government in private transactions, the fact that he has also not supported or suggested any meaningful lawsuit limitations at the state level raises the question of whether he appreciates the damage that excessive litigation does to our economy. It would be reassuring if, as a presidential candidate, he proposed solutions to our litigation crisis, even if they fell short of comprehensive federal tort reform.

Club for Growth Comments on Thompson

-- Ed Murnane
Illinois Civil Justice League
October 15, 2007

9 comments:

Skeeter 12:24 PM  

I am not a fan of Sen. Edwards, but do you have any evidence that he ever filed a frivolous lawsuit? I always thought that the opposite was true for him. He filed serious lawsuits for people who suffered catastrophic injuries.

Moreover, the title of the piece obscures the real issue. "Frivolous lawsuits" are never a problem. Judges toss them.

The real problem is the lottery system of jury verdicts where some plaintiffs are grossly over-compensated for any injuries.

JBP 6:57 PM  

"Frivolous lawsuits" are never a problem. Judges toss them."


Or maybe they don't. Maybe the cause them. Bob Thomas just got $3 Million for being called "shimmy shammy" or some nonsense, and he is Chief Justice of the Illinois Supreme Court.

Skeeter 8:47 AM  

JB,
You need to get your facts straight.
Kicker Thomas did not sue because somebody called him a funny name. He sued because they accused him of a dishonest act. That is a huge difference. It is not frivolous.
As I stated, however, the damages, including in the Kicker Thomas case, often have no relation to reality.
Excessive damages, and not "frivolous lawsuits" are the real problem, and as long as the focus is on frivolous and not excessive, the problem will not be solved.

JBP 10:09 AM  

The nerve of someone in the press to criticize a public official! You would think that there was a law protecting journalists from prosecution when politicians are involved. How dare anyone question our annointed and benevolent leaders!

JBP

Skeeter 12:50 PM  

JB,
You need to read some history.
The allegations in the Kicker Thomas story were not that he was criticized. The allegations were that the person wrote and the paper published a story alleging that a specific incident occurred and the alleged specific incident was dishonest.
For about 600 years the common law has allowed cases to go forward on those facts.
The Kicker Thomas case was never "frivolous." It was a case where the damages were ridiculous.

JBP 6:43 PM  

Sk,
The last time I checked Thomas has been a public figure for about the last 25 years. He might get some unfounded scrutiny, as is the nature of journalists to scrutinize public officials, which is something that Thomas might have considered before becoming a professional football player and supreme court justice.

His case is a clear abuse of power, and as frivolous as a tailfin on a Toyota.

JBP

Skeeter 9:06 AM  

JB,
Again, you need to get your facts straight.
A person published an untrue story of a specific act, and did it, basically, intentionally and with an intent to harm (according to the jury).
That is, and has always been, a tort.
This was not a frivolous case. Unless, of course, you are claiming that the entire Common Law of Englans is frivolous.
Is that really your point?
As a conservative, you want to abolish the Common Law?

JBP 9:32 AM  

I am a Liberal. I want some restraint of government power. When the Chief Justice of the Illinois Supreme court is allowed to abusively litigate against a free press, we have some severe problem going on.

JBP

Skeeter 9:53 AM  

There may be problems, but there are not "frivolous lawsuit" problems.
Nothing about that suit was in the slightest way frivolous. It was in line with 600 years of law.

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