The people of the United States are experiencing the diminishment of their rights in the courtroom. The mangled victims of dangerous products and negligent doctors increasingly find their cases being tried in front of well-meaning, but increasingly powerless juries.
Yes the jury might award the plaintiff a significant verdict of damages. But after they have been thanked for their service and have left the courtroom, the judge will pull out a pen and the shaving process will begin. Ultimately the plaintiff might receive some money, but nothing that approaches the jury’s verdict. In many jurisdictions the plaintiff will see the judgment reduced to an arbitrary statutory limit that lawyers and judges refer to as “the cap.” Curiously, the jurors might never learn that their verdict has been bastardized. Most will return to their homes, naively believing that justice has been done and that they were a part of it. Yes, today’s jury has been defanged and declawed. It exists only to pay lip service to a diluting constitutional mandate.
But let us give the devil his due. The powerful and well-financed insurance industry has moved across America advancing a legislative agenda that consists of four simple but brilliant steps:
1. Limit the damages that juries can award.
2. Limit the contingent fees that plaintiffs’ lawyer can charge (usually disguised as “consumer” legislation). This leads to,
3. Plaintiffs’ lawyers being unable to afford to litigate the most serious and catastrophic cases. Which means,
4. Insurance company coffers swell as they keep money that had previously been used to make payments to the innocent victims of negligence.
Of course none of this happened overnight. In order to advance its agenda, the insurance industry first had to convince the public that jury trials were a bad thing. No small task. And so sound bites were used to convince the American people into believing that a jury of one’s peers was a jury of lunatics.
A headline might read:
JURY AWARDS THREE MILLION DOLLARS TO WOMAN WHO SPILLS COFFEE.
Unfortunately few people will examine the evidence or the case beyond the headline, let alone consider the more disturbing but unstated subtext, which suggests that the American people cannot govern themselves through a system of jury trials. Instead the insurance industry will fan the flames of outrage, then push for legislation designed to limit damages in all cases, even the most meritorious and catastrophic ones. As the old saying goes, the baby has been thrown out with the bath water.
These days most Americans probably believe, incorrectly, that our country is drowning in an ocean of frivolous lawsuits. But most legislation does little or nothing to deter frivolous litigation, seeking instead to cap the industry’s exposure on the most meritorious and catastrophic cases. The concept of the frivolous lawsuit was simply the insurance industry’s “Trojan Horse” designed to camouflage its true legislative agenda.
Sadly, the four-point plan is working. Plaintiffs’ lawyers are already beginning to disappear from the American landscape. But as the plaintiffs’ bar shrinks, so will the defense bar, there simply being fewer and fewer cases to defend.
The civil justice system, as we have known it, is about to become an exhibit in the museum.
To borrow a line from Kurt Vonnegut: And so it goes.
