Class Series Part 2: Torts

| | Comments (3)

Two reasons to discuss torts today: The first is that I just had a paper due yesterday, so it has been on my mind, and the second is that tort reform is a big deal in the political world these days, and I particularly have something to say about its mention in the VP debate last night.

Just about everybody in our class likes torts. The only reason that I say "just about" is because I haven't actually talked to everyone, but everyone I know likes it. A big part of the reason for this is our professor, John Burman. The presentation in class is focused on plainly going over the elements of various claims and applying those elements and rules to the facts. It's not convoluted or difficult, but it gets us to think in the manner most effective to do our job.

Not only that, but his class presentation is funny, with a witty sense of humor that a lot of people can really get into. This would make a dull subject more interesting, and torts isn't really dull, so we get the best of 2 worlds. Prof. Burman also supervises the civil legal assistance 3d-year clinic, and you can clearly tell, even in a 1L class, that he is passionate about his work there and in helping people in general. This kind of passion is infectious, and I'd wager that a lot of us will come out of that class feeling like the legal system is a great tool for promoting justice and helping out those people who have been wronged. For those of us who went into law school for that very reason, it's great to have some continuing reminders in the midst of the crush of the first year that we have a goal beyond tomorrow's reading. All in all, it's a great class. Hard at times, yes, but it's law school, what can one expect?

Now, as promised, my rant about the debate.

I only caught the last 30-40 minutes or so because of a law school function, but I wasn't particularly happy with it, really. My impression was that it seemed pretty even, but the preliminary word around the blogosphere seems to be that Edwards came out ahead.

Before I get to my main point, there is a little something else. People who know me are aware of my feelings about equal rights for persons of non-mainstream sexual orientations. Namely, that they're not there yet and we need to work on this as a form of oppression, get rid of it, and probably revive the civil rights movement in general with this as another frontier (on top of the other frontiers, which are in desparate need of revival, but that's another dozen posts or so).

I caught the exchange about gay marriage, and I'm much more liberal than Kerry-Edwards with regard to this issue (no surprise there). Here's the thing: As much as I may joke about Cheney not being entirely human, caring, whatever, I believe that if it were truly up to him, he would be much more moderate on this issue. This isn't some poor Cheney kind of statement, just that I think his hands are tied on this issue to a large extent because of politics and because of his personal experiences, he would prefer to be a bit more liberal. But he won't.

Now, on to the tort reform statement. If you go here, you can see a transcript of the VP debate. One statement from Cheney irked me in particular: "Over 50 percent of the settlements go to the attorneys and for administrating overhead."

What a lot of people don't understand is that if someone wants to sue a doctor for malpractice, they just don't have the money. Unless you're a millionaire, you just don't have the $250,000 to $500,000 to carry a suit through. There are costs all over the place to bringing suit, from expert witnesses to paying for the court reporter in a deposition (not an inconsiderate amount; court reporters are highly skilled professionals and charge accordingly). Now, since you don't actually have that kind of money, who will put it up? Somebody has to, and there aren't any non-profit agencies out there giving out "intrest free lawsuit loans."

The truth is that your lawyer will probably be putting up the cash. Now, let's say you're a pretty well off lawyer (not as common as you might think), or even that you work at a pretty well-off firm. The bottom line is that $250,000 is not insignificant money. Now, a lot of lawyers in malpractice suits and other tort claims work on a contingency basis. This means that the lawyer only gets paid if s/he wins the suit. A pretty standard portion is 30%. This may seem like a large chunk, but you have to remember that an attorney, in basically working for free, is taking an enormous risk. Incidentally, this is the reason that there really aren't many frivolous lawsuits. Lawyers simply can't take the chance of losing that kind of money and time (which is really another kind of money). A solo lawyer has to pay the mortgage, and those in firms are answerable to that firm, even the partners.

So, back to the money. Now, when the judgment comes in, assuming it does, the lawyer gets reimbursed for the costs of the suit, which I think most people would agree is fair. After all, s/he put up the costs in the first place. I don't know if the costs come out of the award before or after the fees, but let's just assume that there's an award of 1 million dollars in Wyoming (difficult to get). Then we take out $300,000 that goes to the lawyer just for costs. If the lawyer's fees come out of the remaining amount (which I'm not sure about), then right there you have the lawyer getting $200,000 more. Total: $500,000, pretty close to what Cheney said. I don't know what the "administrating overhead" to which he referred is.

Here's the irony: That $200k may not actually be enough to cover the time the lawyer spent on the suit at his/her normal hourly rate. These suits are pretty work-intensive.

So, bottom line is that the statement is highly misleading.

Next up, at some point, an argument on gender issues and how that relates to the currently declining image of lawyers in this country.

3 Comments

Jessica Ford said:

Excellent observations Mackenzie. The only thing that bothers me about the press and/or the Bush's campaign putting focus on tort reform is that it should be insignificant in this presedential campaign. The Republican party wants us to pay attention to a minor detail like tort reform and the fact the Edwards is a trial lawyer to distract us from more pressing issues within our country and beyond. I don't think that there should even be dialogue about the matter. Let's talk about gay marriage and how Democrats consistently ride the fence, or post-war Iraq, or health care, or unemployment. BESIDES, the vice president of the United States is really just a symbolic position anyway, not to undermine, but come one. Edwards experience as a trial attorney will most likely NEVER have any affect on the presidency or legislation. Let's stop talking about it!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Mackenzie said:

Oh, I absolutely agree that we shouldn't be talking about it, the only problem is that it's very important to fight this kind of "Tort Deform" whenever it's brought up. The consequences of this kind of legislation (or in Wyoming, a constitutional amendment) are far reaching and have serious policy effects.

Travis said:

Tort reform doesn't seem to be a wholistically bad idea to me, the problem stems from the fact that none of what is proposed solves for the proported problems. We don't have a complete chain of causation between the two, and it scares me that a concept that high school debaters can get in 5 minutes seems to be illuding those who propose tort reform.

As far as Prof. Burman goes, that man is an embodyment of why I want to practice law. His excitement for the law and seeing things done right are truly inspiring.

About this Entry

This page contains a single entry by Mackenzie published on October 5, 2004 6:51 AM.

Class Series Part 1: Contracts was the previous entry in this blog.

Class Series Part 3: Property is the next entry in this blog.

Find recent content on the main index or look in the archives to find all content.