There’s a famous scene from the movie “And Justice for All” where Al Pacino, playing the role of a lawyer who’s spent the better part of the movie confronting the injustices of the criminal justice system, finally loses it in the middle of a trial and begins to shout at the judge who has just ruled him out of order: “You’re out of order! The whole trial is out of order! They’re out of order!”(gesturing to the audience in the courtroom).
I know the feeling.
A similar system-gone-haywire drama is being played out in Mississippi. In one subplot, record numbers of people are filing civil lawsuits claiming they’ve been harmed by prescription drugs. Of course, all these drugs have side-effects that, generally, are known by the FDA before they are approved. That’s nothing new. What is new is that large numbers of people seem to be willing to swear under oath that they are suffering long-term side-effects that statistically are, by definition, extremely rare. Amazingly (coincidentally?), these ill effects seem to mirror the ones lawyers are bombarding the airwaves with in self-promoting commercials masquerading as public service announcements.
In another subplot to this tort play, finance companies, banks and small loan companies are also finding themselves targets. Multi-million dollar verdicts are becoming commonplace in these cases, as well.
Maybe you’ve seen the latest wave of lawyer advertising, apparently aimed at convincing us that our parents and grandparents are being abused and neglected in nursing homes; another drama in the making.
People who have never even set foot in the few Mississippi counties where these suits are concentrated, or even our state, are sending their lawyers to them in droves to file suit. It’s like that Archie cartoon where Jughead is on his knees on the top of a building looking for a quarter he lost in the basement. “Why are you looking out here?” asks Archie. To which Jughead replies, “Because the light’s better.”
The geography of all this has been extensively reported in publications the world over. Readers of The New York Times, The Financial Times of London, National Review and others are reading about “Jackpot Justice” in Mississippi, accurately labeled by our own Clarion-Ledger. This can’t be good.
Believe it or not, there is an aspect of the Mississippi tort story that is truly under-reported: numerous companies, because of the unacceptable risks of litigating in Mississippi, are settling the cases filed against them as quickly as possible. They know the score; the handwriting on the wall is easy to read when it contains lots of zeros.
In my estimation, the amounts being paid in settlement dwarf the jury verdict numbers. In an effort to avoid becoming the targets of a wider feeding frenzy, many corporate defendants attempt to keep their settlements private. To try to get ahead of the game, some companies have even been known to enter into settlements with lawyers for clients the lawyers haven’t even met yet.
This is a tort system run amuck. Those who are truly injured through the negligence of others deserve to be compensated. That said, what’s going on in Mississippi bears little resemblance to what should be an orderly system of judicial consideration with real rules and real consequences, for everybody.
There is one aspect of this story that shouldn’t be overlooked. The present crisis is almost exclusively within a few counties within our state court system. The federal courts in Mississippi haven’t seen the same rash of huge judgments and case filings. Why? A few features of the federal system may give us clues as to what reforms would help cure the ills of our state courts:
• In federal court the Court can order the plaintiff to undergo an independent medical examination by a court-appointed physician or other expert. This rule goes a long way in providing balance to the testimony of doctors hired by lawyers to examine and testify for their clients.
• Unless the judge certifies a class action, plaintiffs generally can’t join their suits together (a common tactic in state court used to overwhelm the defendants and confuse the jury); each individual’s claim of injury and fault must stand on its own merits.
• The federal judges within the Fifth Circuit (Texas, Louisiana and Mississippi) are famous for their scrutiny of the qualifications and testimony of expert witnesses hired by lawyers to testify.
• Federal judges have law clerks, secretaries and other court personnel to help them deal with the voluminous motions and briefs they must consider in complex tort cases.
• Federal juries are composed of Mississippi citizens from large diverse geographical areas, not one county.
No system, including the federal tort system, is perfect. However, our state’s system is so badly out of balance right now, adjustments must be made. Reform of our tort laws should be a top priority of our law makers and our Supreme Court. In courtroom parlance, it’s out of order.
Mark Garriga is a member of the General Litigation Group of Butler, Snow, O’Mara, Stevens & Cannada, PLLC, where he focuses his practice in the areas of product liability, professional liability, insurance defense and toxic torts. This column is the first in a series examining tort reform issues in Mississippi.