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Mobile Register
March 4, 1997

Tort reform: the same tedious dance

We've spilled a few barrels of ink in this space documenting how trial lawyers have taken over the store. For years, their guys have had a lock on the state Supreme Court, ensuring that plaintiff-friendly interpretations of constitutional issues would redound, cumulatively, to the financial interests of lawyers who represent plaintiffs.

As Republicans' political fortunes grow, that Democratic/liberal lock is being broken. Ultimately, this may be the only way Alabama tort law will ever regain a semblance of neutrality. As things stand now, any bookie would give heavy odds on plaintiffs' winning — and that's not how a justice system ought to operate.

The trouble with solving that problem through a philosophical change at the Supreme Court, however, is that many of the core problems are legislative. Thus, the "solution" that business interests seek — a defendant-friendly court — would only tilt the scales of justice toward the opposite side. Many business people have long (and justifiably) complained about "activist judges" assuming legislative powers; now, those same people are bent on creating an activist court that will "legislate" in favor of business. Again, that's not how a system of justice ought to operate.

The underlying barrier to reform here is that the process has become one of greed and expediency on the left (the trial lawyers) competing against greed and expediency on the right (corporate interests). That there is such a barrier couldn't be plainer than in the current tort-reform fiasco in the Legislature.

Both sides talk the principled talk, of course. But read the bills. Pretending to lead a "reform" effort, Gov. Fob James has become a mouthpiece and cheerleader for the worst ideas in Alabama's business community. He put his name and office behind a bill that would cap civil penalties at $750,000 or triple the compensatory damages, whichever is less.

The business interests represented by the Business Council of Alabama blasted this thing through the House and, with a straight face, claimed they were out for fair reform. Right on cue, the trial lalwyers — acting through their front boy, Lt. Gov. Don Siegelman — are shooting it down in the Senate. Mr. Siegelman points out the flaw in the bill: If a company cheated 10,000 families out of $1,000 apiece, it would be subject to only $3,000 in punitive damages.

But Mr. Siegelman then puts the trial lawyers' spin on this, saying that "the other [9,999] families ... will be entitled to no punitive damages." Please note the twist here: People who commit civil wrongs often deserve punishment — but under no rational theory of punishment are plaintiffs entitled to the proceeds. Trial lawyers keep this bogus notion of entitlement alive for one reason: So long as the money flows to their clients, the lawyers can skim off 30 to 50 percent in contingency fees.

Thus, tort reform is again failing in the Legislature. But let's be clear about why. Yes, the trial lawyers will torpedo any bill that threatens their lucrative pursuits. But business interests supply the trial lawyers with a rationalization. They do so by sponsoring bills that would tilt the law in favor of defendants just as egregiously as the trial lawyers, operating through the Supreme Court, have tilted the system in their favor.

In this sea of black hats, it's mighty hard to spot any good guysl.

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