Monday, October 26, 2009

A defense of lawyers by someone who's not

Society and government exist, at the most basic level, to resolve civil conflicts between competing rights. For example my right (or expectation) to enjoy sunshine on my house in conflict with your right (or expectation) to put a 40-story skyscraper on your lot next to mine. Free market capitalism cannot always resolve civil conflicts (although it is good at creating them). In a free market, an individual or corporation is encouraged to do whatever is legal to secure profit. On the fuzzy area where your rights are infringed by someone else's actions, the free market itself cannot provide any balancing mechanism.

We have three ways of resolving such civil conflicts: 1) regulation, 2) litigation, and 3) vigilantism.

We often hear the tort lawyers pilloried for their role in driving up insurance costs for corporations through "frivolous" lawsuits. While no doubt such lawsuits exist, is the smart response a restriction on lawsuits and lawyers? If such "tort reform" is our path, then we should be willing to increase regulation to balance the loss of accountability. Interesting that some of the same people decrying lawyers and calling for tort reform are also calling for reduced regulation. If we do not have lawsuits or regulations to protect our rights, who are you going to call?

Imagine yourself as the man in Kansas a few years back who had his genitalia erroneously removed in an operation. If this happened to you in Texas today, you would only be allowed to sue for actual economic damages, not pain and suffering, loss of consortium, etc. If you already had a vasectomy, the only actual economic damages would be  any extra time off of work due to extended recovery. It would just be "oops - mistakes happen." That's the Texas version of tort reform. Interestingly enough, Texas tort reform has not stopped the rise in malpractice premiums.

We do need reform of our medical malpractice system, but it's not simply by restricting lawsuits. We need lawsuits to go after the particularly egregious cases of professional malfeasance. However, we also need to recognize that doctors, nurses and hospital administrators are people too.  Honest and accidental mistakes are going to happen.  The only question is how we are going to compensate the victims of such mistakes.  Presently, we have an adversarial system where one side overstates the injury and the other side denies the injury and we waste a lot of court time.

It doesn't have to be this way. Indeed, we actually have two viable alternative examples to follow: the Vaccine Illness Compensation Program and Workman's Compensation.   In the former, the government recognizes that vaccination of all children is a public good to eradicate disease (such as smallpox) but some small percentage of children are going to have terrible reactions, and we cannot predict which ones. So a fund is set up to compensate victims from government revenues.  In the Workman's Compensation programs, industry is required to contribute to a fund to provide compensatory benefits for anyone injured accidentally at work. Note that the worker still has a right to a lawsuit against the company if he/she can show that the injury was a direct and predictable result of malfeasance by the company (e.g. failure to follow government safety standards in an effort to cut costs).

What will you do when a corporation or wealthy individual steps on your rights?  If regulators won't step in and lawyer's won't take your case because the available damage award is too small to offset costs - will you choose the only remaining option: vigilantism? Those that push for a nation without effective lawsuits, without effective regulations, and with lots of guns in public hands are asking for a dangerous and unstable brew.  Seems to me that we need at least two out of the three for a stable society.

Next time that someone quotes Shakespeare's "The first thing... is kill all the lawyers", keep in mind that was part of the plan to overthrow the government and establish a tyranny. If we keep filleting the government and judiciary, we may end up with a spineless entity that can protect nobody's rights.

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