”Technology has changed everything,” says Marc Gallanter, a University of Wisconsin law professor and a leading tort scholar. ”People`s expectations have gone up, and they expect institutions and products to work for them; when they don`t, when people are injured by them, one way they get leverage over them is to sue.”
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That leverage wasn`t always there in the American courtroom for the average citizen.
”In the 19th Century, there was more of an attitude that `accidents happen,` ” says Lawrence Friedman, Stanford University law professor. ”And when damage awards were in the hands of 19th Century juries, they generally were very stingy with corporate money.”
Wealthy defendants had a distinct advantage over plaintiffs of average means. Most attorneys charged an hourly fee for their services. The wealthy could tie up litigation by paying their lawyers to keep a case alive through deft legal maneuvering, effectively bludgeoning their poorer opponents into economic submission.
Moreover, there was once a troublemaker stigma attached to people who filed lawsuits that didn`t relax until a jolting intrusion of new technology into American society: the sudden, dazzling appearance of the automobile.
Ordinary people started driving their horseless buggies into and over other people and their property. How America chose to settle auto accident disputes changed the way we live.
”With the automobile, you have for the first time masses of ordinary people exposed to tort litigation, suing or being sued,” Friedman says. ”It led to an incredible increase in the insurance system.”
Friedman and others say they believe the automobile softened the stigma attached to lawsuits and conditioned juries, once auto insurance became common, to become more generous with liability judgments.
”There is a tendency for jurors to think, `My God, it`s just the insurance company`s money,` ” Friedman says.
Largely without consulting the electorate or legislatures, legal theorists and judges sought precedent-setting court decisions that
revolutionized litigation over the last 30 years. The changes-mainly accomplished through a series of rulings at the state court level, where 98 percent of all tort litigation takes place-included:
– Government`s long-enjoyed immunity from lawsuits was dropped.
– Juries were given wider latitude in assessing damages for such things as pain and suffering and mental anguish.
– For the first time, people who contributed to their own injury were allowed to sue and recover damages from defendants who also bore some responsibility for the injury.
– A ”joint and several” liability concept was created, allowing people to sue many defendants for a single injury. This increased the chances of plaintiffs winning and, because the wealthiest defendant can be made to pay awards for other defendants, increased the chances for multimillion-dollar awards.
By 1965 all 50 states had legalized contingency fees for attorneys. Contingency fee lawyers are estimated to make more than $10 billion a year as their share of lawsuit awards. They have become the wealthiest attorneys in the world.
Forbes magazine said Houston`s Joseph Dahr Jamail took in $450 million in 1988. Of that, $420 million came from a single contingency fee case, a contract dispute between two oil companies. Chicago`s own ”king of torts” is Philip Corboy, who, Forbes says, earned $7 million in 1988.
Corboy`s firm has won more than 100 awards worth $1 million or more in the last 20 years.
Critics say the money made on contingency fees has corrupted the system.
A successful attorney like Corboy rejects 18 out of 20 potential clients, accepting only cases with substantial proof of liability against defendants rich enough or insured enough to pay big awards.
But critics say too many continency fee lawyers file suits based on quantity, not quality, hoping some will hit a jackpot award. The result is a glut of frivolous claims and defendants cowed into paying out-of-court settlements to avoid the expense or publicity of a trial.
”The new rules,” says Walter Olson, author of The Litigation Explosion, and a senior fellow at the conservative Manhattan Institute, ”encourage
(attorneys) to recruit clients, stroke their grievances and run the suit for maximum dollar output.”
In the 1970s, insurance companies began to revolt by canceling some policies and drastically raising premiums for others.
By the 1980s, the insurance industry was fully allied with corporations, doctors, hospitals and municipalities in pushing for a second revolution in tort law. Now, as some of the nation`s richest and most powerful lobbies, they are pressuring federal and state officials to reverse the rules and make it harder for Americans to sue.
”Lawsuit Abuse! Guess who picks up the tab?” is the theme of a national advertising campaign by the American Tort Reform Association. It says the average family pays $1,200 a year in higher prices to cover liability insurance on goods and services.
The association cites as examples a $135 football helmet, of which $35 covers liability protection, a ”hidden tort tax.” The price of an $80 ladder becomes $100, and a $3.40 childhood disease vaccine costs $11.40.
On the other side, consumer groups and unions fight to leave American tort law as it is. Their most powerful allies are attorneys, especially the 65,000 contingency fee lawyers organized as the Association of Trial Lawyers of America (ATLA).
ATLA`s well-funded political-action committees lobby and support pro-plaintiff officeholders and judges.
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Thus the great tort debate has become a bitter contest between self-interest groups frantically trying through their wealth and influence to protect their turf.
Lawmakers have responded, with virtually every state legislature passing some reform measures since the late 1980s. In some instances, governmental immunities to being sued were renewed. Other states put ceilings on jury awards for pain and suffering or punitive damages.
But as fast as pro-defense laws are put on the books, they are challenged by pro-plaintiff forces.
One of the problems in this war of money and influence, however, is that much of the ammunition from both sides is anecdotal.
A typical defense horror story: A burglar wins $260,000 and a $1,200 monthly stipend from a California school board after he is severely injured falling through a skylight while trying to steal a floodlight from the roof of a high school.
A typical plaintiff horror story: A 35-year-old Indiana woman is severely brain-damaged by excessive anesthesia during a wisdom tooth extraction and her family is financially devastated because a $500,000 state limit on malpractice awards does not pay for her care.
Surprisingly there is little in the way of empirical data about the nation`s civil courts. Nobody even knows how many lawsuits are filed each year.
What statistics exist come from two research groups studying a limited number of court jurisdictions. The Rand Corporation`s Institute for Civil Justice made comparative studies of courts in Cook County and San Francisco from 1960 to 1984. The National Center for State Courts has compiled limited tort statistics from 1984 to 1989.
Both agencies found that litigation in this country is increasing by a rate of about 3 percent each year. But they also found that the number of suits filed against ”deep pocket” targets, such as corporations and doctors, has risen sharply, as have multimillion-dollar damage awards. Between 1964 and 1984, such awards rose by as much as 1,200 percent.
Most revealing, however, is what has become of the benefits of modern litigation and the very people for whom tort reform was intended.
The Rand Corporation estimated in 1985 that only 43 cents of each dollar spent on litigation ended up as compensation for injured plaintiffs. The rest went to lawyers (38 cents) and for other costs (19 cents) connected to litigation.
Another study by the Harvard Medical School on medical malpractice in 51 hospitals in New York found that lawsuits were filed in only 1 in 8 cases in which patients were wrongly injured by bungled care or negligence.
In short, the liability system that supports attorneys so handsomely is not always ideal for plaintiffs.
But the jurors who sit in judgment of the thousands of lawsuits that go to trial every year are not, of course, asked to worry about contingency fees, America`s global competitiveness, the insurance crises or the impact of tort law on medical care.
They simply rule on liability and assign dollar awards.
The jury of nine women and three men selected for the Affatato trial were asked to do precisely that.
Next: Shirley Affatato takes the stand.