By Gregory Haubrich
Attorney At Law
(* NOTE: this is a re-print, with some updates, of an article I wrote for the Oklahoma Trial Lawyers Association Journal, The Advocate, about ten years ago. Everything in it still applies today except many of the changes that were being advocated by Mr. Seney back then have now been put into place, severely damaging the rights of injured people to seek fair compensation in our civil justice system.)
As Americans have steadily reduced their participation in the ballot box, their country has been taken away from them piece by piece. Those who sit on their rights, lose them.
Former U.S. Senator John Edwards told us that he had witnessed, in the Senate, a radical re-structuring of the American tax system to the benefit of the wealthy and corporations, and to the detriment of the poor and middle class. The same G. W. Bush who promised that he would ensure that Americans could sue their HMOs for improper medical decisions, has now allied with the insurance industry in calling for the United States Supreme Court to invalidate the Texas law that Governor Bush signed which permits HMO liability in Texas. In the 1960s average CEO compensation was ten times that of a company’s worker. Today, CEOs earn thousands of times the worker’s income.
The Daily Oklahoman, which once editorialized that the Arkansas-Verdigris Canal was a communist plot that would allow Russian nuclear submarines into the heartland of America, published a letter to the editor this week from the Vice President for Operations of the State Chamber of Commerce, accusing trial lawyers of lying to the public about such “reasonable” provisions as limiting contingency fees to 20% and limiting compensation for non-economic damages to $300,000.00. Mr. Seney said the bill really doesn’t do those things, since HB 2661’s cap on damages can be lifted if a jury finds by clear and convincing evidence that the defendant’s conduct was willful or malicious and a lawyer would have the right to ask the judge or jury to give him higher compensation if his work merited it.
A few choice quotes:
The trial lawyers who are against reform in order to preserve their own pocketbooks should be ashamed.
Our current legal system rewards predatory practices, enriching its participants ‑‑ primarily the trial lawyers ‑‑ at the expense of the public …
We must stop frivolous and extortionate lawsuits now or Oklahoma risks becoming a Third World economic state within the United States.
Lawsuit reform is being promoted to protect Oklahoma citizens.
Litigation … has eroded the American foundation of personal responsibility and mocks our society’s long‑standing belief in common sense.
Apparently I was mistaken. I thought the whole purpose of the jury system was to assess personal responsibility and apportion it according to the common sense of the community. Now we find that litigation itself abrogates personal responsibility – i.e., every hurt person caused his own injury, and should be made to suffer it without redress. Does this concept place responsibility for wrongful injury where it belongs? No. Taxpayers will have to foot the bill, and the injured man, woman, or child who cannot work and has no health insurance will become a ward of the state. Now who is misleading who about the “expense to the public”?
Stating that “litigation erodes personal responsibility”, the State Chamber and the proponents of tort reform nakedly admit that they wish to take away from the sleeping people that most precious liberty that is, more than the vote, the foundation of our freedom: the ancient Anglo-American right of one who is wronged to bring the wrong-doer to court and have citizens/neighbors – not lawyers or judges or politicians or bureaucrats – determine who was wrong and how much wrong was done. “The first thing we do, let’s kill all the lawyers” was uttered by Shakespeare’s despot, because lawyers and the rule of law are the final bastion of the people against despotism, greed, corruption, wealth, and persecution.
I’m all for a strong Oklahoma economy. Build better schools. Pay teachers a living wage. Provide clean safe communities with good roads. Facilitate technology and industrial development. Encourage arts, entertainment, and culture. These are the things that bring businesses and jobs to our state. Mr. Seney may not have traveled to the Third World if he thinks our lifestyle and economy can be compared to theirs. I have, and they cannot. However, if we continue taking power and money away from the people and giving it only and always to the wealthy, we will see an ever-widening stratification of wealth and class in our country – which is exactly what you see in the Third World, where power is concentrated in the hands of the very very few, and all others are servants.
Lawyers and the law have not destroyed our economy. Our economy is the engine of the world’s economy. American products and services are innovative, safe, and technologically advanced. If our free-trade agreements included incentives for decent living wages, safe working conditions, and human rights for factory workers of our trading partners, no country in the world could compete with America’s industrial might. Unfortunately for corporate America, “outsourcing” would then no longer be nearly as profitable as it now is.
The highest jury verdict for personal injury in the history of this state was $24,000,000.00. There have only been three or four verdicts over $10,000,000.00. Civil filings in Oklahoma County are down by 20% since 1995, despite the fact businesses are suing each other with ever-greater frequency. I can’t think of a year in which there have been a half dozen medical malpractice verdicts against doctors, or a half dozen punitive damages verdicts. One year our firm quit counting after 67 straight jury verdicts in rear-end collisions gave the plaintiff nothing. Injured people are under-compensated, not over-compensated, by the system. But at least they have a level playing field, a fighting chance, an opportunity for justice. Mr. Seney must be very confident, indeed, that no one in his family will ever be terribly injured by an act of negligence – or that if the unthinkable occurs, the wrongdoer will be a kind benefactor who admits the wrong and voluntarily pays full and fair compensation for the injury caused.
Come to think of it, have any of you ever heard of an insurer paying fair compensation to an injured person who didn’t have a lawyer to present the claim? Have any of you ever heard of a corporation voluntarily taking personal responsibility for designing a product that destroyed lives or amputated limbs, even when the designers knew in advance the injuries were statistically certain to follow? Can anyone give me one example of a physician admitting she made a mistake and offering to pay the full and fair cost of the injury she caused. No. Far more common is the patient being billed the “usual and customary charges” for the malpractice the physician committed.
We are fighting here over an issue of fundamental civil rights. Money and power have become so concentrated in this country that an organization as basic and American as the Chamber of Commerce has lost sight of – or is hiding – the fact it is attempting to destroy an essential facet of American political, legal, and economic freedom. Abrogation of the right of contract between lawyer and client, joint and several liability, the collateral source rule, and the right to be fairly and fully compensated for wrongs committed by others, would change the legal and social fabric of our society in ways that would ultimately create unbearable social tension, since one of the purposes of the legal system is to provide an outlet for civilized resolution of disputes according to accepted legal norms.
The Oklahoma Association for Justice is not an organization for lawyers. It is an organization for the people. We believe there is a legal remedy for every wrong, and we struggle and fight every day to achieve that more perfect justice. When OAJ began, it was a voice crying in the wilderness, but has become a mighty force. I know you who read this hear, understand, and already agree with me. Let not the civil justice system die on your, or my, watch.