Closing Argument: The nature of the beast

By Todd A. Smith

For virtually all of my career the civil justice system has been under attack. The ultimate goal is to diminish and even eliminate the jury decision. This is desired so that the responsibility for wrongdoing can be controlled. And not controlled by judges and juries, but by those who are regularly on the wrongdoer side of the equation.

Of course, this goes to the heart of our separation from England. We wanted nothing to do with a justice system controlled by the powerful. One of the things we wanted was to have independent decisions made by regular citizens. This is why the relentless attacks and the methods used are so troubling.

Attacks on civil justice rights, the independence of the judiciary, and the legal profession obtain quick acceptance among broader audiences simply by the use of buzzwords words and phrases that have been focus-grouped, strategized, and promoted through well-funded public relations efforts.

”Frivolous,” ”Judicial Hellhole,” ”lottery,” ”lawsuit abuse,” even ”trial lawyer,” with the appropriate sneer, have come to represent, for some, the civil justice system in America.

Of course, no one favors a ”frivolous” lawsuit. But billions have been spent to create the perception that most, if not all, lawsuits are frivolous. The most meritorious of cases, that virtually demand justice, seem not to escape the attacks and are clearly impacted.

Who is applying the pressure with seemingly limitless infusions of funds to think tanks, interest groups, and ”institutes”? At this point it is not so well-concealed. Behind misleading titles such as ”American Justice Partnership” (an amalgamation of industry front groups), the ”Illinois Civil Justice League” (the Illinois entry of similar groups), and the ”Institute for Legal Reform” (created and paid for by the U.S. Chamber of Commerce), lies a broad coalition of corporate interests, including the insurance industry, tobacco industry, pharmaceuticals, and more.

But, I suppose, one might say, ”How can you blame them?” If a corporation’s primary purpose is its bottom line, why shouldn’t it do all that it can to increase its revenue and limit its exposure to expense in this case, its responsibility for wrongdoing? It makes perfect economic sense. It’s in the nature of the beast.

And what they have discovered, along the way, is an added side benefit. Although the ultimate prize is the arbitrary cap on damages, the ”lawsuit abuse” campaign also affects elected officials, judges, and juries.

To become widely propagandized as a ”judicial hellhole” can’t feel good. Is it possible some judges are influenced by this effort? I suppose so. Judges are human after all. Perhaps that is what the proponents count on: that such insulting attacks on those who most deeply appreciate the importance of an objective judiciary will indeed bear fruit.

And, as to juries, you need to go no further than any courtroom during voir dire and listen as prospective jurors say there are too many frivolous lawsuits, or simply omit the word frivolous altogether. This suggests they may be inclined not to accept lawsuits, period. Regardless of merit. This is where the meritorious case is impacted. The well-funded campaign has jurors viewing with cynicism every case and their own civil justice rights.

Of course, the promise has always been that they are only after the meritless legal actions. Only the frivolous cases shall fall victim. But this proposition fails under the mildest scrutiny.

At the heart of the ”reforms,” again, are the arbitrary caps. A cap not on frivolous cases, but on meritorious cases, those most devastating to individuals and families. The contradiction is that such a damage limitation only becomes operative after a finding that one’s case has merit. And only after a determination by one’s fellow citizens that significant compensation is appropriate. Even the beast knows this, but it can’t avoid its very nature.

Another side benefit of the assault is the rediscovery of the lawyer as a convenient target in pursuit of the ultimate prize. Of course, lawyers have historically been useful targets, so there’s nothing new there. Here, however, it represents a false target. It is presented as a debate between corporations and trial lawyers.

Of course, this erroneous view is promoted. It’s much easier to vilify the lawyer shooting the messenger who stands to protect these constitutional rights - and make that the target, rather than to focus on the real parties in interest those harmed by the wrongdoer.

Even some objective political figures tend to initially lean toward this view, failing to appreciate that the ultimate losers to corporate power and overreach are not the lawyers, but those the lawyers represent regular citizens. All of us. It is our rights that are diminished and, in many instances, effectively eliminated.

Today, political candidates address the need for change, moving away from gridlock, and speak positively of compromise. Others speak of a candidate’s ability to reach across the aisle and come to agreement. Perhaps this has its place under certain circumstances. Here it represents a false premise. You don’t compromise basic rights. The right to a jury determination of the harm done and extent of it is described as inviolate. You don’t (and can’t constitutionally) ”reach across the aisle” and place an arbitrary legislative compromise on that which is to remain pure.