Monday, November 01, 2004

Public Protection Lawyers

In his seminal work, Don't Think Of An Elephant! Know Your Values And Frame The Debate, author George Lakoff provides a groundwork for understanding how important the framing of issues is in garnering support for various political initiatives and attitudes. While the conservative side of the spectrum has recognized the importance of language, and has worked fastidiously over the past 30 years dedicating enormous sums of money to think tanks and right wing causes in order to corner the debate, the left has been largely complacent, operating under the erroneous belief that the facts would be enough, and if only data and information could be widely disseminated, people would flock to their causes.

This is not how it works. Facts themselves are less important than frames. While that might sound counterintuitive, anyone who has borne witness to the fact that most Americans who support President Bush believe a number of fallacies regarding Iraq, WMDs, the connection to al-Qaeda, etc., as laid out in a series of polls conducted by the
Program on International Policy Attitudes, can attest to the reality that many Americans refuse to accept facts that have been widely discussed and repeated by reputable and bipartisan sources. These people are not all lacking in mental capacity. Something else must explain the intransigent ignorance. Lakoff has one possible answer:

Neuroscience tells us that each of the concepts we have - the long-term concepts that structure how we think - is instantiated in the synapses of our brains. Concepts are not things that can be changed just by someone telling us a fact. We may be presented with facts, but for us to make sense of them, they have to fit what is already in the synapses of the brain. Otherwise facts go in and they go right back out. They are not heard, or they are not accepted as fact, or they mystify us: Why would anyone have said that? Then we label the fact as irrational, crazy, or stupid. [p. 17, emphasis added]
Thus, the mind gets trained to think according to certain patterns, or frames, and then the actual data gets processed through that prism. What doesn't fit gets rejected or contorted to fit the container. Think of some of the frames that have been defined by the right to their advantage and adopted and repeated by mainstream America as if they were conventional wisdom: small government vs. big government, tax "relief" vs. tax increases, family values vs. liberal decadence, etc. And then there is the clever use of language in order to cast certain initiatives in a morally sound light: partial birth abortion, Leave No Child Behind, Clear Skies, Healthy Forests, The Patriot Act, etc.

If one adopts the language that the right has so meticulously vetted, tested, marketed, and crafted, there is no way to win the debate, no matter whose side the facts are on. The truth behind the frames and the linguistic subtleties listed above reveals a picture that favors the progressive side of the debate, but that doesn't matter - especially because the left itself has fallen into the lexical trap set by the right. When conceived of in the way that the language mandates, the progressive side almost always loses.

In pursuit of undoing some of the linguistic knots that the conservative punditry has tied the discourse into, I will discuss one emerging frame that has been featured prominently in this election season: tort reform. If you recall, tort reform was President Bush's answer to pretty much every problem facing ordinary Americans (when he wasn't trumpeting the virtues of No Child Left Behind in the hypothetical response to a worker who just saw his job outsourced). When asked about the skyrocketing costs of health care, Bush answered with tort reform. When queried about the weakness of the economy and job losses, Bush responded with tort reform. He even went as far as to blame the lack of flu vaccinations on the fact that manufacturers were so frightened of lawsuits that they would not produce the needed supplies.

The truth, of course, lies elsewhere. For example, the increases in health care costs are not the result of malpractice litigation - although malpractice premiums are onerously high on many physicians. In fact, in states like Pennsylvania that has seen a decline in malpractice payouts over the past four years, malpractice insurance continues to rise at a brisk pace. The Congressional Budget Office confirms these facts:

The 2003 Weiss Report found that despite caps on economic damages in 19 states, "most insurers continued to increase premiums [for doctors] at a rapid pace, regardless of caps." The report found that caps only slowed the increase in the size of awards insurers paid, and that insurers failed to pass along any savings to those physicians in states with caps by refusing to lower physicians' insurance premiums. The Congressional Budget Office found malpractice caps would only reduce health insurance premiums by 0.4 to 0.5 percent. [Weiss Report, 6/3/03; Congressional Budget Office, 1/8/04]
That indicates a problem with the insurance industry, not the concept of malpractice litigation. Furthermore, the cost of prescription drugs is the single biggest culprit when calculating the increase in health care premiums, but that has nothing to do with medical malpractice. It is worth mentioning, though, that Bush's vaunted prescription drug bill specifically forbids Medicare from using its bulk purchasing power to negotiate lower drug prices.

Lakoff discusses some of the rationale behind the facade of tort reform:

Tort Reform is an example of an indirect, misleading type of Multiple Issue Strategic Initiative - indirect because the stated reason for the initiative is not the only goal, or even the most important one. For instance, supporters say they want "tort reform" to cap awards to prevent "frivolous lawsuits", but what they really care most about is other effects that follow from this: to allow corporations to weaken public protection laws which guard the public's health and safety, to weaken environmental regulations that restrict their business operations, and to eliminate an important fund-raising base for Democratic candidates by limiting the income of public protection attorneys who overwhelmingly donate to Democratic candidates. Although "frivolous lawsuits" is the catchphrase, it's about many other goals that go unstated in the public debate.
Lakoff is right to note how the "frivolous lawsuits" have been highlighted and used to create the impression that the entire legal system has run amok, producing a litany of cases that defy reason. The truth is that some such cases exist. There are some well known examples of exorbinant payouts for slight wrongs, like the suit against McDonalds for the coffee that was too hot, and the suit against the car manufacturer for not disclosing an extra paint job to smooth over wear and tear on a supposedly new car. But what system does not produce such spectacular wrongs? Certainly corporate America has been behind some of the most grievous injuries suffered en masse by ordinary Americans, yet we should not propose to regulate business in too extreme a manner so as to stifle the economy. Over-reacting to a problem is not an acceptable solution.

While these examples are real, and should be addressed, that is not what the right-wing wants to accomplish with the dubiously titled "tort reform." Instead, they are using these most extreme examples to garner support for an overly broad legislative regime that would in effect release corporations from responsibility for the safety of their products, and the impact their businesses have on the health and environment of ordinary Americans.

The specter behind the "frivolous lawsuits," according to the meme, are the dreaded "trial lawyers." These unscrupulous pack are the ambulance chasers, the legal extortionists, slick performers who unfairly assault business owners regularly. That is utter nonsense. In truth, the plaintiff's bar is composed of very hard working, dedicated, professionals who take on big monied interests in defense of ordinary people who have been harmed by corporations who often calculate these injuries into their cost benefit analysis.

That is the point behind so many of the biggest payouts. They contain punitive damages, which are meant to put a financial incentive on big corporations to cease conducting business in a way that threatens public safety - especially when they had knowledge of the risks they were exposing the public to beforehand. What used to happen when a corporation would produce a flawed product, or pollute the environment, is that the costs from litigating these claims were calculated into the cost of doing business. A certain amount of death and injury were an acceptable cost if lower than the cost of conducting business in a way that would eliminate, or substantially curtail, such harms.

As an aside, I'll let you in on a dirty little secret of the legal profession: deaths actually cost a company less than grievous injuries. When a death occurs, only certain relations of the deceased can bring a wrongful death suit, and even then the calculation of damages is not that high because the person who suffered the most is already dead, and thus can't bring the suit or collect the judgment. A person who is grievously injured can sue for all of the suffering, pain, economic impact, and loss of lifestyle that they will experience for the remainder of their lives. That is a much higher number than the relative of a person killed.

But I digress. Punitive damages are a means to make the corporations pay so much, that the cost benefit analysis tilts in favor of public interest: safe, healthy products, safe workplace conditions, less pollution, equal employment, non-discrimination, and better business practices all around.

In this sense, I argue that "trial lawyers" is the wrong language to use because of the negative connotations. They should be referred to as Public Protection Lawyers - because that is what they are. They are the last line of defense against unscrupulous, reckless, or negligent corporations.

The right wing's version of "tort reform" tries to cap claims on punitive damages, and in other areas set caps on damages that are set arbitrarily and do not always comport to the realities of a given case. In this sense, they are trying to "close courts" themselves and limit the ability of juries to decide whether or not a given case is worthy of punitive damages in order to insure public protection. I believe it is better left up to the jury, and to forestall payouts before the fact would only encourage more corporate abuses - making the cost of litigation more acceptable and thus providing incentive to pollute, cut corners in production, maintain unsafe work environments, etc. Therefore, I will refer to tort reform as Court Closing Initiatives.

For a sensible look at how to streamline the process, I point to
the program promulgated by the Democratic ticket of John Kerry and John Edwards, each of them a lawyer - a prosecutor and public protection lawyer respectively.

"They will eliminate the special privileges that allow insurance companies to fix prices and collude in ways that increase medical malpractice premiums." This will help to bring down malpractice insurance costs for physicians who are being squeezed on both ends of the system.

Their plan "will require that individuals making medical malpractice claims first go before a qualified medical specialist to make sure a reasonable grievance exists and require states to ensure the availability of non-binding mediation in all malpractice claims before cases proceed trial." This will serve to weed out the frivolous cases before major expenses are incurred on the part of defendants. This will eliminate frivolous cases since the plaintiff's bringing them won't be able to threaten the defendant with the costs of a trial in order to get an out of court settlement.

Kerry/Edwards will "support sanctions against plaintiffs and lawyers who bring frivolous medical malpractice claims, including a "three strikes and you're out" provision preventing lawyers who file three frivolous cases from bringing another suit for 10 years." Again, this will help to eliminate the frivolous cases, and punish the unscrupulous lawyers bringing them.

Finally, they will "oppose punitive damages - unless intentional misconduct, gross negligence, or reckless indifference to life can be established." This will insure that the courts remain open and that the decisions on punitive damages remain in the hands of the juries, but only in cases that would warrant such a reward based on the conduct of the defendant.

It is better to leave courts open, to let courts serve their valuable role in this society. In an age where governmental regulation and oversight of industry is being coopted by the very industries themselves, the courts are the last refuge for ordinary, hard working Americans. I hope that none of you will ever need one, but if you are so unfortunate as to suffer a grievous injury that could have been prevented, you will fully understand how worthy public protection lawyers really are. In the meantime, you can thank them for their contributions in making corporate America adhere to safer, healthier, and more productive practices.

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