I have been known to ignore a lot of things. Things like: instruction manuals, the need to ask for directions when lost, the Kardashians, Snookie, the incomprehensible difference between who and whom, and my wife’s pleas for me to put my dirty laundry in the clothes hamper rather than leaving it in a pile on the bedroom floor. The thing I tend to ignore more than anything, however, is poll statistics.
I ignore poll statistics because I learned a long while ago that statistics can be manipulated and skewed. Cyril Davenport Hughes, a well-known statistician, once wrote:
“The phrase ‘statistics can prove anything’ is almost meaningless except in the sense that figures can always be so chosen and presented as to support the user’s views. It is clear that differently phrased questions allegedly enquiring about the same things, can easily elicit different answers; and that the circumstances in which the answers are given can greatly influence the results.”
One special interest group that loves statistics is the U.S. Chamber of Commerce. This private special interest group, who is funded in part by large donations from corporate America, uses statistics to push for legal reform. What they really do from my perspective, however, is push for “reform” that benefits the few at the expense of the many. To accomplish their goal, the Chamber targets us trial lawyers. They quote statistics in their public policy campaign such as:
73% of voters say lawyers benefit the most from lawsuits; only 4% say victims do.
83% of voters say the number of frivolous lawsuits is a serious problem.
Tort costs were $838 per U.S. citizen in 2008.
These statistics are derived from election exit polling in a November 2008 poll conducted by Public Opinion Strategies, and they paint a grim picture of how my colleagues and I are ruining our cherished legal system and costing you a lot of money each year. The $838 “tort tax” cost was calculated by a firm called Towers Perrin (now known as Towers Watson). Judging by the jurors I’m talking to in the courtrooms around this state, the Chamber should be proud of how effective their public policy campaign is becoming.
But are these statistics accurate? First, I feel it’s important to note that Public Opinion Strategies has as its clients many of the large corporations that help fund the U.S. Chamber of Commerce. The Chamber itself is also a client of the firm. We also do not have the benefit of knowing what questions were asked of the polled, only the results.
Let’s look at some more objective statistics and facts in light of those polls conducted by Public Opinion Strategies and espoused by the U.S. Chamber of Commerce:
According to the Justice Department under President George W. Bush, the number of federal tort (personal injury) cases resolved in the U.S. District Courts fell by 79 percent between 1985 and 2003. In 1985, 3,600 tort trials were decided by a judge or jury in U.S. District Courts. By 2003, the number was less than 800. Click here for source.
As to lawyers benefiting the most from lawsuits, it is true that civil justice attorneys like myself charge contingency fees that depending on the recovery can turn out to be seemingly high. The contingency fee system has provided Americans who must go to court with a degree of access to the justice system that is not found in most countries. This system allows people who cannot afford to pay hourly legal fees to obtain representation. There are rules on what a lawyer can charge for their services and these rules are enforced. I can tell you personally out of over two hundred clients in the two years I have been practicing, I can count on one hand the number of times a client has received less in compensation than I have in an attorney fee. Often, I reduce my fee to ensure the client takes more than I do, as do many of my colleagues.
What about that tort tax though? My colleagues and I cost you $838.00 a year by filing all these “frivolous” lawsuits! First, it should be noted that the Towers Perrin study has been largely discredited for being inaccurate by a variety of sources, including The Wall Street Journal. But, let’s assume for a second that the study was accurate. That means I cost each of my clients $838.00 a year. Out of 189 clients that I went back and looked at, that means an aggregate cost of $158,382.00 in what the Chamber calls “tort tax” in a given year.
I’m going to go out on a limb here and say that my clients don’t mind that, and it’s not because they are a litigious sort that call me from the ambulance to immediately sue in the hopes of getting a big windfall. It’s because those same 189 clients have incurred an aggregate of over $3.7 million in medical bills related to their injuries. Injuries they suffered through the fault of someone else. These medical bills are bills that they often lack the health insurance to pay with (due to the cost), leaving them buried in a mountain of debt. That’s an average of over $19,500.00 per client. That doesn’t even include the amount of lost wages, out of pocket expenses, property damage, and other collateral expenses those victims of negligence incurred.
The U.S. Chamber of Commerce also has launched a public policy campaign called “Faces of Lawsuit Abuse” that purports to shed light on the plight of small business owners because of these out of control lawsuits I and my colleagues file. What about the cost to small businesses because of negligence? The lost productivity they suffer when their employees can’t work because they were the victim of negligence? The lost revenue they suffer when my clients can no longer afford to spend money at their business because the liability insurance carriers refuse to pay for the medical bills their insureds caused my client to incur? Additionally, what about the victims of corporate abuse? Most of my clients are clients simply because the liability carrier for the at-fault party unfairly delayed, denied, and nit-picked the claim in the hopes of saving money to increase already large profits (by the way, industry insiders admit that tort reform will not do anything to decrease your premiums).
The next time you hear a 30 second sound bite calling for an end of lawsuits and the need for legal reform, I hope you take the time to actually look into the claims of the person and/or special interest group behind the push for that so-called reform. Take the time to research their statistics and educate yourself on these issues, as they could have a large and negative impact on your own interests if the Chamber and other groups like it accomplish what they set out to do. When you do, you may find that the U.S Chamber of Commerce makes valid points and is full of accurate and insightful information. Or, you may just find that like the chamber pots of olden days, the Chamber is full of…well…
Disclaimer: The views of the author are his own. This post is obviously not intended to convey any specific legal advice upon any specific individual. The author welcomes open discussion of these issues with anyone who is willing to discuss them. If the reader wishes to learn more about these issues, the author suggests they click here, here, and here to start your own independent research and to get the other side of the tort reform story. The author does not intend to say that frivolous lawsuits do not exist. They do, just not in the number the Chamber would have you believe. In, this trial lawyer author has at one point even represented an owner of a small business against a lawsuit that was found by the court to be without merit and subsequently dismissed. Despite the verdicts you read about, there are rules and procedures to keep the truly frivolous suits out of the courts. Finally, the author would point out that he does not leave his clothes on the bedroom floor solely because he is domestically lazy. Said author does so in large part because said wife ignores the author’s pleas to not leave empty Coke cans on the coffee table. The author, despite his vast experience in negotiation, apparently is not all that good at it because he has yet to effectuate a mutually agreeable settlement in the matter.
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