From The Morning Call

Statistics don't support Bush's bashing of trial lawyers

July 13, 2004

The first thing we do, let's kill all the lawyers. No, wait.

First let's torture the facts.

To hear President George W. Bush and his angry business supporters tell it, a legion of ''trial lawyers'' — personified by Democratic vice presidential hopeful John Edwards — is ruining America. They clog the courts with frivolous lawsuits. They drive good doctors out of medicine with outrageous malpractice claims that lead to astronomical insurance premiums. They bring honorable businesses to their knees with big class-action suits that fritter away productive time and money while bestowing most benefits on rapacious lawyers.

All outrages, if true. But are they? Ask John Ashcroft.

The attorney general of the United States keeps a fine set of numbers about civil trials and their outcomes. In April, the Justice Department's Bureau of Justice Statistics published a survey of state cases — the vast majority of civil lawsuits are brought in state courts — that were decided at trial in 2001, the most recent data available. Cases that end without a trial — 97 percent of civil lawsuits — aren't included because settlement terms are often kept private.

Here's what the Justice Department says:

The number of civil trials held in the nation's 75 largest counties dropped by 47 percent from 1992 to 2001. In jury trials in which the plaintiff was successful, the median award shrank from $65,000 in 1992 to $37,000 in 2001. Winning plaintiffs were awarded punitive damages only 6 percent of the time — with the median punitive damage award only $50,000.

Not enough to make you, or your lawyer, rich.

And anyway, the president seems not to worry about the run-of-the-mill car accident case — though 60 percent of tort lawsuits involve automobiles, according to the National Center for State Courts. Nor does he seem concerned with the mundane slip-and-fall suit (17 percent of cases).

It's those oversized damage awards and over-the-top class actions against business that have his dander up. So the Justice Department looked at these, too.

The largest damage award turns out to have been granted not in some liberal bastion but in Bush's home state of Texas. The award was indeed huge — $454 million, reduced to $121 million on appeal. Did this go to an injured motorist or to a child poisoned by toxic drinking water? No. It went to a Texas company that won a contract dispute with some Mexican partners who'd broken faith on a franchise deal.

How many class-action suits turned up in the Justice Department's 12,000-trial survey? One.

It was a successful case against an insurance company that had changed the job classification of its claims representatives to ''administrative'' personnel — a switch that exempted the company from paying overtime. The employees won $91.2 million for uncompensated overtime and another $34.5 million in interest. That gets split among 2,400 workers and their lawyers.

Now, maybe these folks are greedy, a menace to the American economy. But then what would you call the lawyers who cooked up the job-title scam? Campaign contributors, I guess.

Come to think of it, have you ever heard a politician who is prone to apoplexy over ''trial lawyers'' also complain about union-busting lawyers? How about tax lawyers? Or HMO lawyers? The Bush administration just sided with HMO lawyers in a crucial Supreme Court case that said patients cannot sue their HMOs, even when the insurance plans deny care that doctors recommend.

Pity the doctors. They're squeezed between insurance companies that want to hold down their incomes and other insurance companies that want to pump up their malpractice premiums. Premiums have indeed spiraled upward. But the reason isn't only malpractice suits. The nonpartisan Congressional Budget Office concluded that losses from malpractice claims contributed to the premium hikes — but it couldn't determine ''the composition and causes of these losses.'' We don't know if they stemmed from bad lawsuits or bad doctors.

But the budget office also found that insurers took in less money from investments in a chronically soft market — and so charged doctors higher premiums to make up the difference. ''A decrease in investment income meant that income from insurance premiums had to cover a larger share of insurers' costs,'' the CBO said in a report last year.

There is a mountain of evidence, then, that should get the political case against trial lawyers dismissed. It probably won't. Few arguments are as powerful as a populist-sounding cause when it's backed by the corporate wallet.

Marie Cocco is a columnist for Newsday, a Tribune Publishing Co. newspaper. Her e-mail address is cocco@newsday.com.