Even though little seems to separate the major Democratic Presidential candidates in their domestic policy pronouncements, primary voters at least have a clear choice with regard to temperament. Howard Dean is combative and moody, irrationally exuberant in Iowa and oddly sombre in New Hampshire. John Kerry is patrician and aloof—when a New Hampshire voter asked him what the X on the voter’s Malcolm X hat meant to Kerry, the St. Paul’s alum joked, “Latin for 10?” John Edwards, on the other hand, is calm and deliberate, the therapeutic populist who never tires of reminding voters of his humble origins.
Edwards was, after all, a trial lawyer, and at his best his tone is that of a well-prepared closing statement. More often, Edwards descends into his “Unfrozen Caveman Lawyer” routine, weaving a pathetic story that has little to do with the problems America confronts. One might hope that a candidate’s campaign book would at least provide vague banalities on important issues. Edwards, however, has named each of the chapters in his offering, “Four Trials,” by the first name of one of his clients. In last night’s debate in South Carolina, Edwards was asked by moderator Tom Brokaw about his position on free trade, a key issue in a state that has been hit hard by the loss of textile jobs. Edwards responded that he had grown up in a Carolina mill town and that however useful job retraining and the like may be, what is most important is that he understands the pain of the unemployed workers. (Sound familiar?) Presumably that empathy is not redeemable at the grocery store.
While there is something cheesy about Edwards’ campaign demeanor, one should not write off his style as form over substance. Edwards’ veneration of his 20 years as a plaintiff’s attorney demonstrates his conviction that trial lawyers have an important role to play as watchdogs and advocates for the less privileged. He does not so much as blush at the prospect that rapacious trial attorneys are injuring many of the individuals they claim to serve.
In the 20th century, Americans elected only one Democratic President with a law degree—Bill Clinton. Clinton never practiced in the private sector before entering politics, and he is of course banned from doing so now by the Arkansas bar. Nonetheless, his sympathy for the plaintiff’s bar did not stop him from opposing the Private Securities Litigation Reform Act, which attempted to curtail frivolous shareholder derivative suits that often benefit no one but the plaintiffs’ lawyers. A bipartisan coalition in Congress overrode Clinton’s veto—the PSLRA was the only legislation to be passed over a Clinton veto.
Under an Edwards presidency, proponents of tort reform may not be so fortunate. The Senate is currently considering three important pieces of legislation that the House passed last year. The Class Action Fairness Act would deter forum shopping by allowing the removal of larger class actions to federal court. The Protection of Lawful Commerce in Arms Act would bar suits against gun manufacturers for the criminal misuse of their products. And the HEALTH Act, whose catchy acronym must surely appeal to Edwards even if the bill itself does not, would cap pain and suffering damages for medical malpractice lawsuits at $250,000. Each of these bills represents a modest attempt to reign in the worst abuses of our tort system. Nonetheless, Edwards has refused to support any of this legislation as it languishes in the Senate.
The third of these issues, medical malpractice costs, will probably take on the highest visibility in coming year. The eyes of most Americans glaze over when the words “tort reform” are uttered, but nowhere are the effects of excesses in the system more evident to the average voter. Edwards, to his credit, has stated publicly that frivolous medical malpractice suits are driving up the cost of insurance, and thus health care in general. Yet his plan to reduce costs is as bizarre as it is ineffective. Edwards proposed in last night’s debate that all medical malpractice suits should be reviewed by an independent board; only when such a board had “certified” that the claim was not frivolous would the claim proceed to trial.
An independent board serving as a gatekeeper for malpractice suits is no doubt a departure from our adversarial system of civil justice. Edwards did not explain the mechanics of such a board and who would pay for it. It would be unfair to saddle taxpayers with the costs of dashing the hopes of frivolous litigators. If the plaintiffs themselves foot the bill for this new bureaucracy, we could only expect this to turn up on the laundry lists of costs for damages in successful suits. Edwards’ plan only makes sense if the costs of defending frivolous suits that would be weeded out by the board exceed the costs of the board to review ALL suits—a shaky proposition at best. Either way, frivolous suits could be much more easily deterred by fee shifting and sanctions that would place the costs on those most responsible for clogging the system—the trial lawyers themselves. Such a system would reduce any incentive for insurers to settle frivolous claims that it would be more expensive to litigate to a “not guilty” verdict.
Even so, Edwards has identified only part of the problem. Frivolous suits waste resources, but so too do outrageous pain and suffering awards for meritorious claims. It is difficult to see what social purpose such huge jury verdicts serve. Surely doctors who have sworn fealty to Hippocrates and their state regulatory agencies do not need another incentive to avoid commiting malpractice. If anything, such huge awards may drive up health care costs by encouraging doctors to practice preventative medicine by ordering marginally useful but expensive tests. And, as Justice Traynor, certainly no stalking horse for corporate medical interests, pointed out, such pain and suffering damages drain away resources that could be used to compensate other victims for their real medical needs. None of these problems are addressed by Edwards’ curious plan.
John Edwards is in his heart a trial lawyer who seems to believe that lawsuits are not a last resort for settling differences but a fundamental engine of positive social change. It is a covenient conviction for one who has amassed an enormous personal fortune of tens of millions of dollars, primarily through jury awards in medical malpractice suits. Had Congress followed the lead of California and enacted serious caps on pain and suffering damages in the late 1970s, Edwards would not be so loaded today. One can only expect that Edwards will reject any attempts to reform the system whose inadequacies he so took advantage of in his professional career.
