Wednesday, February 05, 2003

David Held writes:
I don't see how a cap on non-economic damages makes it more difficult for plaintiffs "to see the inside of a courtroom" (that is, if the lawyer is still willing to represent him/her without the possiblity of the gargantuan payoff). It only reduces the payout from a jury verdict in favor of the plaintiff. Pain and suffering would still be unlimited. Reducing available causes of action, however, would make it more difficult; or compelling arbitration before litigation.


First, the proposal is to limit, or cap pain and suffering to $250,000, as I understand it. Here's a hypothetical to illustrate the chilling effect on plaintiffs' lawyers taking cases as a result of caps on pain and suffering damages: Joe Lawyer takes a med mal case. Hypothetically, it involves a man who died as a result of negligent emergency room care, so the medicals are minimal. He's dead, so there are no additional medical expenses. He knows he'll have to finance it, i.e., put up the expenses, because his client has no money, and certainly not the tens of thousands it takes to get these types of cases to resolution. So, let's say that he handles the case for four years, not unusual in med mals. Let's say he ends up spending $95,000 to go to trial, also not an unusual figure, given the hoops the defense makes us jump through [experts, depositions, more experts, travel, per diems, more experts, more depositions, and so forth]. I use a general rule of thumb that my expenses should be no more than 10% of the anticipated recovery. Based on that factor alone, Joe Lawyer should not take the case if there is a maximum of $250,000 in pain and suffering available, because the risk is far in excess of the upside to client or lawyer. And since any lawyer who wants rock 'em and sock 'em but not lose her shirt will try to figure anticipated expenses v. anticipated recovery at the outset, not many lawyers will want to take these cases, because they might win the battle, but lose the war.



Moreover, the bigger the case, i.e., the more egregious the negligence, the more catastrophic the damages, the harder the defense will probably fight it. Thus, any really significant case will probably end up not being taken, because the plaintiff will work -- and spend -- himself to death for a mediocre recovery. What caps mean ultimately is that the defense side, which has almost unlimited resources, will simply try to outspend the plaintiff, who is very limited in resources in most cases.



In this regard, read "A Civil Action," by Jonathan Harr, for a fabulous exposition of how defendants will try, and in this case, succeed, in crushing a plaintiff's lawyer under the weight of expenses [if the plaintiff's lawyer allows it], especially in the really big cases. A review of the book can be found here. A philosophical review of the movie, unfortunately posits the notion that to be effective, a trial lawyer must be a cold, calculating, emotionless shark. Not surprisingly, I disagree. In Jan Schlichtman's case, he just lost any sense of objectivity, an observation with which I bet he would agree.

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