Super Lawyers
William C. Altreuter

Sunday, December 13, 2009

Michael Getnick is the present shah of the New York State Bar Association. He has written an intelligent article on tort reform in, of all places, the Daily News. Some of his points:

* The "lawsuit explosion" is a myth. In fact, the opposite is true. The number of tort filings in New York State actually decreased by 30% from 1998 to 2008. The total number of tort cases filed was down from 81,952 to 57,023.
* These cases often take years to come to a conclusion. Lawyers working for contingency fees don't get paid unless they win. It would be ludicrous for someone in that position to file a frivolous lawsuit.
* There are checks and balances in the system. If someone files a frivolous lawsuit, a judge can sanction the lawyer for doing so and dismiss the case. If a jury awards too large an amount, a judge can reduce it. If the losing side disagrees with the result, they can appeal.

For all that we make our living by our advocacy, our glamor profession has done a poor job of making these arguments. Perhaps this is because, in the final analysis, the tort system has outlived its time as an effective method for spreading the cost of risk. Some years back my law partner and I gave a series of presentations here and there about how the rise of the European Union would ultimately result in the contraction of the Western European neo-welfare state, and the rise of an American-style tort compensation system. That hasn't happened, and I now tell the students in my Discovery class that I hope I outlive the tort system. I expect that I will-- the agony that has accompanied simple health care reform over the past year tells me that change comes more slowly in American culture than we commonly suppose-- but the day will come when the United States recognizes that a fault-based compensation system for individuals injured as a result of negligence places our businesses at a competitive disadvantage globally. With that realization we will see the same dividing lines as we are seeing presently. The affluent will say, "Screw the poor. We want ours." The left will wring its hands. And the media will report the controversy as though both sides of the argument have equal merit.

Universal, single-payer health care would have kept the American automobile industry from collapsing. Ours in the only manufacturing infrastructure in the world that expects private industry to underwrite the health care costs of its employees, past and present. When whatever industry it is that comes to dominate the American economy in the 21st Century the way the auto industry dominated the 20th comes to the realization that it is faced with cripling liability exposure as a result of a tort system rooted in the economics of the 19th Century we will either see change, or the collapse of that industry. It is only a question of time.

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