Those Darn Lawyers

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On the research side, they have helped fund a plethora of antilitigation research see note Add this to the efforts of the coalition organizations, and the tort reform movement seems quite formidable. Yet tort reformers have been largely frustrated in their efforts in Congress. Their successes have largely come through state legislatures, and even there, they have often been thwarted by judicial rulings overturning tort reform laws on state constitutional grounds.

The tort reform movement may have had its greatest impact outside the legislative arena, where it has apparently persuaded judges and juries to be more skeptical about personal injury claims. Indeed, tort reformers have helped to reshape public discourse about litigation, undermining the heroic view of lawyers and lawsuits that has always competed in the American mind with more unsavory images of the legal profession.

Thus tort reformers have made steady gains in the cultural war over litigation even as they have often lost particular political and legal battles. Federal tort reform efforts began with a Nixon administration report on medical malpractice litigation in In the following years, the Ford, Carter, and Reagan administrations sponsored reports proposing antilitigation legislation. Federal product liability legislation, first introduced in the mids, has over the years varied in content. The earliest bills sought to undo the strict liability standard that the California Supreme Court had first adopted; others have provided for caps on damages and expanded defenses.

None of the bills has become law, despite strong support from Republicans and some Democrats. Until the Democrats' control of Congress and use of filibusters prevented any bill from advancing. After the "Republican Revolution" of the combination of Democratic opposition, the threat of filibuster, some defections by Republicans, and Clinton administration opposition kept product liability bills from being enacted. The closest any of the bills came to passage was in , when Congress failed to override a Clinton veto.

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Bush administration's enthusiasm for tort reform has been diminished by the Democrats' control of the Senate and perhaps by the political fallout from the Enron scandal. Federal medical malpractice tort reforms have also failed to make any headway, despite much discussion.

Between and forty-six medical malpractice reform bills were introduced into Congress, most of them involving discouragement reforms.

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There was some talk about putting a cap on malpractice damages in the Clinton health care bill, but ultimately the bill had only minor medical malpractice provisions. Indeed at the national level, the tort reform movement has been able to enact only relatively minor laws. While the number of laws passed might seem impressive, these measures were limited in scope and effect, relatively small-scale victories scattered amongst a series of major defeats. Observers suggest several explanations for the failures of the federal tort reform effort: Whatever the reason, the major legislative successes of the tort reform movement thus far have come at the state level.

The first major wave of state tort reform was in the mids, when medical malpractice insurers rapidly raised their rates and exited some markets. The result was labeled a "medical crisis" in many states, with doctors finding it difficult to get malpractice insurance. Some California doctors even went on a brief strike to dramatize their plight. Legislatures responded with a flurry of tort reforms. Between and , fourteen states passed laws encouraging arbitration, twenty-nine created screening panels for lawsuits, twenty limited attorney contingency fees, fourteen put monetary caps on damages, and nineteen restricted the collateral source rule.

The second wave of tort reform, which commenced in the mids, was much broader, going beyond medical malpractice to all areas of personal liability. Here again a major stimulus was a rapid rise in liability insurance rates together with reports that day care centers, playgrounds, and other facilities were closing because of the lack of affordable insurance.

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Between and sixteen states capped "pain and suffering" damages, twenty-eight limited punitive damages, twenty restricted the collateral source rule, and thirty modified their joint and several liability rules. In alone, forty-one of the forty-six legislatures who met passed some type of tort reform. After several years of relative calm, a third wave of tort commenced, possibly spurred by state-level Republican gains in the elections.

In eighteen states passed tort reforms, including extensive reform packages in Oklahoma, Illinois, Indiana, and Texas. Between and fourteen states limited punitive damages, thirteen modified their joint and several liability rules, and eight made significant changes in product liability law. Research suggests that some of the measures passed in the first two waves of tort reform, particularly the caps on damages, have modestly reduced lawsuits, damage awards, and liability insurance premiums.

Many of the tort reforms, though, seem to have had little or no effect. But even where the tort reform movement has fallen short in the legislatures, it may be having indirect effects on the judicial process. The data are far from conclusive, but there are indications that publicity about the "litigation explosion" may be changing the behavior and attitudes of judges and juries.

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Research has found that jurors firmly believe that there has been a "litigation explosion" and are deeply suspicious of plaintiffs in tort lawsuits. Another study found a "quiet revolution" in products liability, with judges rolling back some of the litigious policies enacted in the s, seventies and early eighties, possibly in reaction to the publicity generated by tort reformers. As a result of the shift in doctrine, plaintiffs are faring worse, and claims have been dropping. Thus the gains of the tort reform movement may go well beyond the passage of legislation.

Thanks to the enormous material interests behind it, tort reform dominates public discussion of litigation politics. But tort is just one area in which discouragement policies have been debated or enacted. Consider some other examples: Criminal Justice The chief antilitigation effort in criminal law recently has been the move to restrict habeas corpus lawsuits, which critics say give prisoners and death row inmates too many chances to appeal, resulting in long delays.

In , in the wake of the bombing of the Murrah Federal Building in Oklahoma City, President Clinton signed the Anti-Terrorism and Effective Death Penalty Act, which included a provision limiting death row inmates to "one bite of the apple," a single habeas corpus appeal.

The Supreme Court upheld this statute against a constitutional challenge—a ruling in line with several previous Court decisions limiting the right to appeal. A second law, also passed in , the Prison Litigation Reform Act, seeks to discourage civil suits by prisoners and to reduce judicial control over the administration of correctional institutions.

It requires prisoners to pay a fee when filing a civil suit and penalizes prisoners who file lawsuits deemed frivolous with the loss of "good time" credits toward early release from prison.

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Thus Congress has attempted to discourage prisoner lawsuits, one the largest and fastest-growing categories of federal litigation. Civil Rights When the U. Supreme Court in released a string of rulings that had the net effect of discouraging plaintiffs in civil rights cases, Congress reacted with an encouragement law. The Civil Rights Act undid the Court's decisions but went beyond this to expand the use of jury trials and increase the kinds of damages available to plaintiffs in discrimination lawsuits.

These changes have in turn generated a host of horror stories about discrimination litigation, and in Congress discouragement bills have been introduced to limit damages and institute a "loser pays" system in civil rights lawsuits. Environmental Policy Many American environmental statutes allow citizens to either sue regulators for being too lax in their enforcement efforts or to bypass the regulators entirely and sue alleged polluters directly.

The citizen lawsuit provisions have been criticized for misdirecting enforcement and for creating an undeserved windfall for environmental groups who win damages lawsuits. Discouragement reforms that limit clean air and clean water lawsuits have, however, failed to attract much support. Bush's proposal to limit the sweep of citizen lawsuits under the Endangered Species Act was predictably pilloried by environmental groups.

Administrative Law Across many policy areas, including the environment, courts since the s have played a major role in the administrative process. Those dissatisfied with an agency ruling found that they could flee to the courts for a second opinion.

Critics argue that judges should not second-guess the decisions of agencies and that the process of litigation greatly hinders administrative regulation. The struggle to discourage litigation has primarily been carried out in the courts, where the U. Supreme Court's decision in the Chevron case was seen as a signal to lower courts to grant more discretion to agencies. Whether the courts have taken the hint or the Supreme Court itself has become more deferential to agencies is unclear. Funding for Litigation One seemingly straightforward way to discourage litigation is to eliminate programs that fund lawsuits.

Yet antilitigationists have been largely unsuccessful in this effort. For example, attempts to rid citizen lawsuits of attorney fee provisions have gotten nowhere. Funding for legal aid, however, was slashed after the "Republican Revolution" of and subjected to various restrictions. I recently spoke to a wonderful law firm association group mixed practice areas, law firm leaders who were very receptive, inquisitive and appreciative.

Overall, their energy fueled mine and resulted in great reviews. Conversely, earlier in the week I spoke to a practice specific sub-group of a different law firm association and the audience appeared less than satisfied—was it the content or my style?


But I can say that environment worked against me: I feed off the audience—for better or worse! The upside was that I did get some valuable critical feedback that inspired me to restructure some of my points and perhaps that even helped the second presentation later that week. This is interesting, Heather. And maybe it is, as you say, because you had an audience of litigators, though I find lawyers, generally, are on the lookout for loopholes, etc.

Lawyers can be harsh

I generally find the best and worst evaluations to be less helpful than all of those in-between. They are the outliers. What I was hoping to convey in this post is that we, as speakers, cannot get defensive over constructive and non-constructive criticism. I soooooo want to prove WHY the outlier comment were wrong and prove why I could dismiss what he said. But, in reality, between the non-constructive critical points, were some things that I could take home.

Once I divorced myself from what I found to be an overly personal attack, I was able to see it and find what was useful. This is spot on and a valuable lesson for legal marketers not just in terms of formal presentations, but in the way that they interact with their attorneys on a day to day basis.

Just as we are different as communications professionals, lawyers with varied specialties differ as well. And I have found at some of our CLE programs that attorneys can be incredibly cruel and nasty, instead of constructive, in their criticism. The lack of eye contact, connection, feedback hampers your abilities, and theirs, throughout the presentation.

Third, too much joking around, or camaraderie in an online presentation is going to upset lots of folks.

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Heather, Thanks for this post. I applaud your courage to speak on a tough subject. It seemed as if the entire marketing team was there to disagree with every single point I made. Free Returns Changed your mind, you can return your product and get a full refund. Cash on Delivery Pay for your order in cash at the moment the shipment is delivered to your doorstep. Don't have an account? Update your profile Let us wish you a happy birthday! Make sure to buy your groceries and daily needs Buy Now.

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