“Us” vs. “Them” – Which One Are You?
Political football season is in full swing, and the health insurance debate is like the BCS Championship, although this contest has a real playoff. As with so much of our present political discourse, this fray is framed as “Us” vs. “Them.” The two sides square off, and you are either with “Us” or one of “Them.”
There are times to draw such stark battle lines. Football games give passionate participants a pick between opponents. As the clock wound down on the Big 12 title game, “Us” UT fans saw one second on the clock, which “Them” Cornhuskers swore had elapsed. If only real life were as uncomplicated as football.
Trial lawyers are so accustomed to being cast as “Them,” we sometimes forget we only exist because of You. Our clients are real people whose lives have been wrecked by the careless conduct of others. You may not be a plaintiff now, but every person you know – including You – is one reckless driver, one product malfunction, or one medical error away from needing a trial lawyer. It happens in an instant. Not a single one of my clients ever expected to be a victim.
“Tort reformers” like to talk about the “litigation lottery,” as if people who sue for injuries are contestants for a game show prize. These “reformers” ignore the suffering of those they portray as “Them” and not “Us.” It helps marginalize people if you dehumanize them.
In the health insurance debate, “medical liability reform” has been bandied about as a panacea. Cut off the right to sue, “reformers” say, and the healthcare system will heal itself. Limits on healthcare liability claims have not made medicine cheaper or safer, or increased the number of people with access to healthcare. Yet, many people buy this line, until they find themselves in the role of victim, suddenly going from being one of “Us” to one of “Them.”
Senator John Ensign (R-Nevada) recently gambled on the public perception of trial lawyers and their clients as “Them” with his proposed amendment to limit attorney’s fees in malpractice cases. He did not seek to cap fees paid by insurance companies. Senator Ensign, being the good lieutenant for Big Insurance, thinks defendants deserve their day in court, with as many lawyers as they can afford. He only scheduled surgery on the fees charged by trial lawyers who represent patients. Fortunately, his attempt to stack the deck against patients was voted down 66-32.
The rejection of the Ensign Amendment included eleven Republicans who voted “No.” Unfortunately, both Texas senators (Cornyn and Hutchison) voted for the Amendment and against You. This is something to remember the next time they ask for your vote.
The contingent percentage fee provides people with limited resources a level playing field against large corporations and insurance companies who can afford to pay lawyers by the hour whether they win or lose. Take away contingent fee contracts, and the result is a legal system with no lawyers willing to take cases for You. Try to find a lawyer to handle a worker’s compensation case, where fees are severely restricted for claimants’ lawyers (but not for insurers). Few experienced trial lawyers handle worker’s compensation claims. Most of us, myself included, only accept “non-subscriber” or “third party” cases, where contingent percentage fees are allowed.
When the Texas legislature imposed a $250,000 “non-economic damage” cap on medical liability claims, the real purpose was to attack the profit motive for trial lawyers. Those smart “reformers” realized “Them” lawyers would not risk the time and money necessary to develop these extremely complex cases when the stakes were artificially set so low. “Us” Texans amended the state Constitution (even proponents of the cap knew it was unconstitutional), and as a result most victims of medical errors cannot find a lawyer to even consider their cases. This does not prevent “frivolous lawsuits.” It puts a choke-hold on all medical liability lawsuits – even those involving obvious neglect. The legislation was passed in 2003, yet it still shocks people to learn how it cuts off their rights, once they go from being one of “Us” to one of “Them.”
When you hear the words “tort reform,” do not be fooled into thinking the only people affected are those “other people.” The right to take a case to court and sue for damages protects all of us, and that includes You.
