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Mobile Register
January 31, 1996

And litigators laugh

As the special legislative session for tort reform fizzles out, this is an appropriate time to step back and collect our thoughts about this effort — to consider, again, what the fundamental problems are and what kinds of solutions might make sense.

One part of the problem is punitive damages. Defendants who recklessly or deliberately harm others deserve to be punished, of course. But it doesn't follow that the plaintiff should profit from that punishment — and still less that the plaintiff's lawyer should profit.

Yet that is precisely how it's done in Alabama. Even after a plaintiff has been compensated for his every expense — lost wages, medical bills, property damage — and awarded extra money for pain, suffering and mental anguish, our civil law then turns the windfall of punitive damages over the plaintiff.

The net effect of this practice has been to turn greed into a growth industry. Plaintiffs' attorneys talk the talk of justice, of holding wrongdoers accountable, of deterring business practices that are predatory and harmful. In practice, however, they routinely file lawsuits seeking damages that are stratospherically disproportionate to the alleged wrongdoing. The goal in practice, as opposed to theory, is to maximize the lawyer's contingency fee in a civil system that regards "excessive punishment" as an undefined term, a concept without content.

Last Thursday in these columns, we suggested an alternative that would close down this greed industry without letting guilty defendants off the hook: When a jury determines that a civil defendant deserves punishment, refer the case to the attorney general for prosecution under the criminal code. Toughen up that code so that corporate officers and their agents would be subject to fines and prison terms.

In a letter printed below, Robert T. Cunningham finds this suggestion laughable, ludicrous and ridiculous. Mr. Cunningham is a Mobile trial lawyer whose firm specializes in representing plaintiffs. His position beautifully reveals the rhetorical desperation of trial lawyers when their lucrative arrangements are challenged by sound alternatives.

In a column published in 1994 in this newspaper, Mr. Cunningham defended multimillion-dollar verdicts as appropriate punishment for conduct that "almost always is the equivalent of criminal conduct." A few months later, we published a letter from Joseph M. Brown Jr., a partner in Mr. Cunningham's firm, in which Mr. Brown opposed caps on punitive damages (as we do) because they would soften punishment of behavior that is "truly criminal in nature." Last year, Mr. Brown weighed in again, criticizing the "unscrupulous and indeed criminal activities on the part of insurers and their agents."

But when we propose to criminalize behavior that is criminal, Mr. Cunningham falls out of his chair laughing. Why does he find this suggestion so absurd? He suggests in his letter that prosecutors would be swamped with cases, that they would never have enough time or resources to shoulder such a herculean load.

That's odd. Last year Mr. Cunningham wore out several messengers sending this newspaper documents to prove that the extent of cases involving punitive damages is wildly exaggerated. One article says that "the so-called liability explosion ... is essentially a myth." A study in a law review concludes that punitive damages are awarded in "less than 3 percent" of product liability cases and "less than 2 percent" of medical malpractice cases.

Richard Pate, another Mobile trial lawyer, recently hooted at tort reform as a cause founded on exaggeration. He said in a published letter that in 1994, only 24.9 percent of cases decided in the circuit court were civil cases — and "fewer than 1 percent" of these involved punitive damages.

If cases involving punitive damages make up such a thin sliver of the total caseload, why would prosecutors be overwhelmed by them?

Perhaps Mr. Cunningham assumes that he gets peremptory strikes against readers of this newspaper until he isolates a group that will swallow his incoherent assertions. In any event, he leaps to a second line of defense: The Business Council of Alabama "virtually controls" the House of Representatives and would never let such laws get through.

Granting this as a talking point, one would suppose that Alabama's trial lawyers support candidates for House seats in an attempt to rectify this imbalance. Suppose again. The trial lawyers don't care a fig about the House. They put their money on horses in select Senate races and, most particularly, on plaintiff-friendly candidates for the Supreme Court.

Reports of campaign contributions by candidates bear this out — and Mr. Cunningham's law firm is no exception. Thumbing through a few reports from the November 1994 election, we find that his firm contributed more than $42,000 to just four candidates for the Supreme Court. Nearly two-thirds of that went to Justice Mark Kennedy's campaign.

So, again, rhetoric takes the high road while reality travels the low. The trial lawyers may point their fingers at the House, but they mail their checks to the Supreme Court. They know who butters their bread.

Such is the case against punishing criminal behavior with criminal penalties, the case as presented by the faction that profits immensely from the status quo. You are expected to believe that the prosecutor's office would be overwhelmed by fewer than 1 percent of civil cases.

This is supposed to be hilarious. Are you laughing yet?

Tort reform editorial was a real stitch

To the editor:

I almost fell out of my chair laughing at your Jan. 25 editorial, the most recent in a series of editorials on tort reform. The editorial discussed the efforts of the Business Council of Alabama to severely limit legal accountability for wrongful conduct such as knowingly selling defective products or intentionally defrauding consumers. Under present laws, the only effective punishment for such conduct is in a court of law through the imposition of punitive damages by a jury.

The humor lies in your editorial position on this important issue of corporate accountability — abolish punitive damages.

You write: "If a civil defendant is culpable, refer the case to the attorney general for prosecution under the criminal code — and amend that code so corporate officers will do prison time for harmful misconduct." This argument is laughable. Do you really believe the Business Council of Alabama, which virtually controls the House of Representatives and which is spending hundreds of thousands of dollars to minimize civil accountable for wrongful conduct in a court of law, would ever let criminal laws pass that instead send the officers of its member corporations and insurance companies to jail?

Not even the Business Council of Alabama is taking the ludicrous position that Alabama should completely abolish punitive damages. Punitive damages are provided as a civil remedy for wrongful conduct in 47 of the 50 states. If our Legislature followed your ridiculous suggestion, Alabama would end up at the bottom of another list — the list of states that hold corporate wrongdoers accountable for wrongful conduct and protect the interests of the consumer.

If and when criminal laws governing such conduct are passed and fully enforced, then there will be no need for punitive damages. Unfortunately, not only are such laws extremely difficult and expensive to enforce, they do not presently exist in Alabama and there is little likelihood they ever will exist.

Meanwhile, if your editorial suggestion were followed, corporate wrongdoers could and would — freely and without fear of any punishment whatsoever, civil or criminal — injure, maim and defraud the citizens of this state.

Robert T. Cunningham Jr.

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