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Attorney Stuart N. Ratzan on David’s Slingshot and the Judicial System

The judicial system, and the jury trial in particular, are the great equalizers in our democracy. How many of us have the power and money to compete with the tobacco industry, or British Petroleum, or Walmart, in our state capitols or in the United States Senate? In the halls of our capitol buildings, power and money reign. Imagine the reception the average citizen would get when entering to persuade a legislator on a need for public funds, or on a change in the law, as compared to the CEO of AIG, Goldman Sachs, or Johnson & Johnson! And what about the Executive Branch? What are the average citizen’s chances of accessing the Governor’s mansion for a sit down? And the White House? In the words of Tony Soprano, “Fahgettaboudtit!”

But if a major corporation, insurance company, hospital, or doctor hurt or wrong any of us, no matter who we are, we can access the court system for a remedy. In the judicial system, all are equal before the law. The proverbial “little guy” has the power, in our system, to hold those who have transgressed him or his family accountable in our court system. Access to lawyers, of equal or higher quality as compared to the lawyers for the wealthiest American corporations, is available through contingency fee arrangements. And the right to recover damages has, until recently, been equal to the injured party, no matter who it is, as compared to anyone else.

In the last decade, the power of the average citizen to hold powerful interests accountable has been under attack, and virtually destroyed in many states and in many instances. Before Big Business and the medical industry launched its attack, the average citizen, even an impoverished American, could aim his slingshot at the mightiest American corporation, insurance company, or hospital, and if the facts warranted it, if the evidence showed the powerful defendant was wrong, or negligent, or disobeyed the law, the slingshot would find its target, Goliath would fall, the average citizen would prevail. What’s more, the fate of the case was not in the hands of high-powered judges or officials. Instead, the decision rested with a jury of lay people. The judicial system empowered not only the litigant. The community, through its citizen juries, was entrusted with the power to decide legal disputes. The rich and powerful were equal to the common man. All had to obey the law, or be subject to the power of a citizen jury to dispense justice. This was democracy at its finest, the brainchild of our Founding Fathers who fully appreciated the importance of balancing power in our society in this manner.

Today, in many states across the country, including Florida, damages have been “capped” by the legislators, at the urging and with the signature of their respective governors. Ranting against “greedy trial lawyers,” and threatening the public that lawsuits cost all of us money and jobs, the Big Business lobbyists persuaded legislators and their respective governors around the country to usurp the power of jurors to decide cases. (They sidestepped the data that contradicted their rants and proved the negligible cost to society of jury verdicts.) Without knowing anything about a given case, the legislators and their respective governors predetermined what is fair for citizen jurors to do. So much for empowering the common men and women of our communities as opposed to the rich and powerful! The halls of the rich and powerful responded to the demands of the rich and powerful. Seeking to eliminate the one branch of government, the judicial branch, that it cannot control and cannot (usually) purchase, the power elite used the branches it could purchase and control to legislate accountability out of existence. Not what our Founding Fathers had in mind.

In Florida, the damage caps have come in the form of medical liability damage caps, shielding doctors and hospitals from accountability when they maim or kill their patients. In other states, like Mississippi, the cap applies to all cases, not just medical malpractice cases. The effect is to arbitrarily cap the amount a person can recover, at limits such as $500,000 or $1 million, regardless of the facts of the case or the severity of the damage. The practical effect is that lawyers working on contingency fees are disinclined to challenge the unlimited resources of the most powerful defendants and their law firms. In the biggest, most expensive cases, there is no upside, no financial motivation to justify the risk of representing the average citizen. What’s worse, with little risk and limited exposure, the powerful and wealthy defendants are now more inclined than ever to defend their cases before juries, no matter how egregious their negligence in causing harm. Cases become more time consuming, more expensive, more lucrative for the hourly billing lawyers retained by the defendants, and more debilitating for the plaintiff’s lawyer working on contingency. The average citizen, lacking the resources to pay in any way other than a contingency fee, is unable to retain a lawyer. The courthouse doors slam shut. The rich and powerful wrongdoer gets away with the wrongdoing. No one is accountable. And the injured citizen is left uncompensated, holding the bag, kicked to the curb. Definitely not what the Founding Fathers had in mind.

David’s slingshot was all he had. But it was all he needed. Goliath has figured that out, and has now — through tort reform and damage caps– trampled on us all. When will it stop? When will our citizens realize they have been manipulated? When will they once again secure their rights and their power in the only branch of this democracy that gives them an equal chance? Or, will the state Supreme Courts, when presented with the opportunity to scrutinize these laws, have the courage to declare them unconstitutional violations of our rights to access the courts, to jury trials, to equal protection of the laws, and to separation of powers? The most current test is in the Mississippi Supreme Court, where the justices heard oral argument on the matter on June 14, 2011 in the case of Learmonth v. Sears, 631 F. 3d 724 (5th Cir. 2011). The Florida Supreme Court has the issue before it in the Estate of McCall v. USA, 2001 WL 2084069 (11th Cir. May 27, 2011), recently certified by the 11th Circuit Court of Appeals. And Louisiana, where a $500,000 damage cap has been in place and never adjusted for inflation since 1975, is confronting the issue in Oliver v. Magnolia Clinic, 51 So. 3d 874 (La. App. 2 Cir. 11/17/10), vacated and remanded, 57 So. 2d 308 (La. 3/25/11). We will wait and see.