Torah, Justice, and Texas Tort Reform

Sermon delivered on September 5, 2008, by Rabbi Barry H. D. Block

Justice was hard to find in Texas in the early 1990s. Too many Texans were looking to win the lottery, not by buying a ticket, but by filing a civil lawsuit.

Car accident? Popular opinion was that a person could walk away with a million bucks. The circumstances of the accident and the extent of the injuries might not even be as important as a skilled lawyer, a sympathetic jury, and a favorable judge.

Believe that a physician’s error caused a loved one’s death? Sue! Never mind that the deceased smoked for sixty years, was ninety years old, and died of coronary artery disease. The family might at least receive a settlement, say a few tens of thousands.

We all heard about the famous case of suing McDonalds because the customer spilled hot coffee on herself in the car. Perhaps this sort of thing happened all the time.

The consequences were dire, punishing all Texans. Insurance companies were paying exhorbitant settlements and penalties. To recoup their losses, insurers raised prices through the roof. Drive a car? We paid more for liability insurance. Need a medical or surgical specialist? Might not be able to find one. More than a few physicians left practice, rather than pay excessive rates for malpractice insurance. Our State’s poorest communities became bereft of vitally needed medical care.

Texas was increasingly viewed as a tough place to do business. Why not set up shop elsewhere? The threat of ruinous lawsuit would be much lower, not to mention the cost of liability coverage.

“Tort reform” became a bipartisan byword of Texas politics. Others call it “lawsuit reform.” “Tort” refers to a harm for which a person might seek compensation. Suppose I have a diseased right kidney, which needs to be removed, but the surgeon removes the left one. That’s a tort. Suppose I fall and injure myself because of a hazardous condition in a store or restaurant. That’s a tort.

Theoretically, tort reform means that the legal system needed to be fixed, so that compensation would be appropriate to the harm. No more huge awards for minor injuries. No more big settlements paid by a doctor who had not actually caused harm. No more frivolous lawsuits over hot coffee.

The problem was real.

Believe it or not, the issue is even validated in the Torah.

This week’s portion, Parashat Shofetim, is all about justice. We often point to this portion as a source of pride. In many ways, Torah is the ultimate source for the principles underlying our American sense of Justice. Tzedek Tzedek tirdof, cry the words of Deuteronomy: “Justice, justice shall you pursue.”

One of the most interesting Torah passages about justice presents a paradox. We are commanded not to favor the high and mighty in our courts. In the same breath, we are instructed not to show deference to the poor.

Torah seems to fear two competing possibilities of injustice. On the one hand, we may admire the rich and powerful. We may find benefit in allying ourselves with the elite. We may even assume that people don’t rise to the top of society without merit. Therefore, we may be biased on their behalf.

On the other hand, we are taught to be sympathetic with the poor. We may look at a dispute between a huge corporation and an impoverished individual, and see a “David and Goliath” story. As a result, we may side with the poor person in the dispute, whether that person is right or wrong.

Fifteen years ago, we frequently heard stories of “jurisdiction shopping.” In this practice, lawyers would look for an excuse to file a lawsuit in South Texas. Here in Bexar County, and particularly in counties closer to the border, juries tend to be sympathetic to the poor. Looking into plaintiffs’ eyes, jurors saw themselves. Looking over at defendants, they saw faceless corporations and the forces that had kept them and their families in poverty for generations. Right or wrong, understandable or not, we should not be surprised that the results were one-sided verdicts, humongous awards to plaintiffs and their lawyers, meaning excessive penalties to the defendants. If a defendant corporation saw a case heading for trial in such a forum, it would tend to offer a generous settlement, not because they admitted responsibility, but merely to avoid potential disaster. The approach was like that of Robin Hood: taking, and sometimes stealing, from the rich in order to give to the poor. The system had little to do with justice.

Jurors were not most to blame. Judges favored the poor. Why? Perhaps some of them, like the jurors, identified with the downtrodden in their communities. Moreover, Texas judges are elected, and corporate bosses do not make up a majority of the electorate. Most importantly, though, the largest donors to judges’ campaigns were plaintiff lawyers. Plenty wealthy and powerful themselves, plaintiff lawyers might be seen to have bought perverse justice for their clients, lining their own pockets.

“Lawsuit reform” may be seen cynically, as little more than recognition by business leaders and insurance companies that they could play the same game as the plaintiff lawyers. In fact, they could do the same thing even better. The wealthiest and most powerful in our society are not, after all, plaintiff lawyers. Corporate America could, and did, decide to spend its money to repair the legal system in its own image.

Today, all nine members of the Texas Supreme Court are more apt to side with the defense side in a lawsuit than with the plaintiff. Some are extremists, who essentially never rule on behalf of the plaintiff, whatever the facts, irrespective of justice. Even in the poorest jurisdictions, judges supported by plaintiff lawyers must run against others who are supported by corporations and insurance companies.

The result? In medical care, some success has been realized. Malpractice rates have come down in many areas and are rising less sharply in others. Slowly, access to medical care is improving.

Texas is increasingly seen as a great place to do business. Corporations continue to move to our State, and few leave.

This progress comes at a high price.

Poor Texans increasingly can’t find a lawyer. Thousands of plaintiff attorneys have been forced to close up shop. Those who remain may be reluctant to take a case that is not a “slam dunk.” Countless citizens of Texas have been harmed, but they find no justice in the courtrooms of our State.

Justice has been perverted in Texas. The impoverished citizen, riddled with cancer because of toxic chemicals dumped in her back yard, may not even be able to find a lawyer to represent her. A victim of medical malpractice must jump unreasonably high hurdles to prove that he has been harmed, and then for dramatically reduced compensation, with little for his very real pain and suffering. Unlike the United States Supreme Court, the one in Austin can, and does, indefinitely fail to make a ruling. The State Supreme Court’s members have all received tremendous campaign contributions from business leaders and insurance companies. They are called “justices,” but they don’t always enact justice. They can and they do delay the payment of a penalty for years after it has been assessed by a jury, affirmed by a judge and found to be appropriate even by a Republican-led Court of Appeals. Justice delayed, we all know, is justice denied.

We have no reason to believe that anything will change, as long as our judges are elected, as long as most judicial races are essentially fundraising contests between plaintiff lawyers and corporate bosses. If either side wins, justice loses. For that reason, my State Senator, Jeff Wentworth, has long argued that judges must be appointed by a non-partisan commission. No solution is perfect, including Senator Wentworth’s. His crusade, though, is about justice. His colleagues in the capitol should pay heed.

Once upon a time, Texas justice was perverted in deference to the poor. Tort reform fixed that problem. Now, justice is again flouted, this time to benefit the high and the mighty. Justice, only justice, is ours to pursue, neither the cause of the wealthy nor the plea of the poor, only justice. Torah tolerates no less. Neither should we.


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