Affluence and accidents

One reason that I find many of the major tort reform advocates and their attendant "intellectuals" a little bit arrogant is that they seem to think that they are immune from the random misfortune that leads to personal injury lawsuits. Not that trial lawyers can't be a little full of themselves, but for a long time, I thought the leading lights of tort reform were just in denial about their potential need for the legal system, and that accidents were just that: random, and not dictated by class or privilege. But then I saw a story in the Washington Post recently that changed my mind.

A new study found a direct correlation between childhood IQ and rates of hospitalization for accidental injuries. The smarter the kids, the less likely they were to have serious accidents, a trend that continued through adulthood. Researchers offered several explanations, including that kids with lower IQs were more likely to drop out of school and end up in more dangerous and poorly paying jobs. Head injuries as a child also led to more accidents as an adult. Education mitigated the effects, so even dumb kids who got a decent education (our current president, perhaps?) were less likely to be injured.

The study made me think that maybe the tort reformers are right. They--and the billionaire CEOs they represent--don't really need tort law. Most of them are overprivileged white guys who, I suspect, have never flipped a burger except maybe on their outdoor Viking kitchens. Their private schooling and Ivy League bona fides mean they don't have to work in coal mines or put themselves in harm's way as cops or soldiers. Affluence means they don't have to drive crappy American cars that are deadly in accidents or rely on bad doctors and risk malpractice--all the things that land people in court. The odds are consistently in their favor. Tort law, then, is for the rest of us peons, just the folks that the "reform" movement wants to shut out of the justice system...

Comments

[Supremacy Claus]

Hello, Stephanie. Visiting from over at Overlawyered.

http://www.overlawyered.com/2007/01/affluence_and_accidents_and_ad.html#more

Who is Erik Wemple of California?

I have a couple of questions for you. I assume you believe in the benefits of torts.

Why does the lawyer deprive himself of the benefits of torts by placing the obstacle of privity in between him and the adverse third party?

Will you support legislation that 1) makes it mandatory to carry legal malpractice insurance large enough to compensate all victims of lawyer carelessness, as a condition to licensure or its renewal? 2) removes all self-dealt obstacles to a legal malpractice claim by anyone injured by lawyer carelessness, 3) allows juries to regulate licensed lawyers in torts including careless judges (do you believe juries can judge the lawyer's meeting professional standards of due care?), 4) that does not shut the courthouse door in the faces of the victims of lawyer carelessness, in violation of many state constitutions giving access to the court to all, with no exceptions for the victims of lawyer carelessness?

If you cannot support such a statute, the Fairness to the Victims of the Careless Lawyer Act (The FVCLA), then please, explain why not.

[John]

Supremacy,
For the same reason that the doctor who performs open heart surgery on a mob boss is not liable for someone who is killed by him al a later date. does this sound too unsophisticated for you?
then, for the same reason a chemistry teacher is not responsible for the inventor of a hallucingenic drug, or even a weapon of mass destruction.

the lawyer enforces the law, as established by the legislature, as established by the people. Are there "bad" lawyers???

Yes, just like there are bad priests, and teachers. Should we abolish religion? Nope, just hold the wrong doers accountable.
Should we abolish education? Nope, just hold the wrong doers accountable.

Should we abolish corporations, and business? Should we resort to joining nomadic tribes to follow vegitation and possibly hunting? Nope, just hold them accountable.

You're smarter than anyone else on these blogs (apparently,) why don't you do it?

[Supremacy Claus]

John: Don't go off the deep end on us. I love the lawyer, enough to correct the lawyer. The rule of law is an essential utility product, no less absolutely needed than water and electricity. I know that.

When a careless lawyer has caused an injury to an innocent adverse third party, when a careless lawyer has violated the expressly enumerated duties to the adverse third party in the Rules of Conduct, of Evidence, of Civil and Criminal Procedure, thus committing a per se tort, why is a jury not good enough to judge if the lawyer has deviated from professional standards of due care, as attested by an expert, in the lawyer's own subspecialty?

Why can't a jury judge a lawyer in a torts civil claim? Why does a lawyer need a privity obstacle, that no one else has? Why are only lawyers on the bench good enough to regulate the careless lawyer injuring an adverse third party?

When you are finished answering that simple question on the jury, explain how the immunity of the lawyer from legal malpractice claims by the adverse third party not violate the access to the court sections of many state constitutions, and the procedural due process rights of the injured defendant who wants to become a plaintiff in a lawyer legal malpractice suit. Explain the constitutionality of the privity obstacle to legal malpractice claims of the adverse third party.

[JHS]

I suppose it would be just as valid if I said that the only people who support the current tort system are a bunch of self-centered lazy whiners and Marxists looking to milk the system for all it's worth, looking to make millions on someone else's efforts by turning every imagined slight against them into million of $$ in settlements and jury awards?
Would that be correct too?

Oh by the way, I'm not an overpriveleged white guy. I am white, but I'm a guy who joined the army because I couldn't find a job anywhere else and worked as a pizza cook and delivery boy to get through college. Have a nice day.

[TC]

For some reason I think you (the author), would be the 89th sig on the duke 88 roster!

Been filmed on the streets banging pots!

Supported Nifong all the way!

Fark the evidence! They for sure committed some crime, git a rope!

***********

As to tort reform, such is easy, take the profit, no the GROSS profits out of the attorneys hands, and you will see reasonable tort reform! Continue to allow the John Edwards's type attorneys to run rough shod over the nations economy and this nations will spiral like, well like it's doing now!

[seth]

TC - If you think tort litigation is destroying the US economy, I've got a bridge I'd like to sell you.

[Mark]

Since my first job was flipping burgers, and all the cars I have ever owned are American (Chrysler, Olds, Saturn), and I advocate tort reform, I take offense at your assertion that "Most of them are overprivileged white guys who...private schooling and Ivy League bona fides mean they don't have to work in coal mines or put themselves in harm's way".

It takes simple common sense to realize the "legislation by adjusication" process is not constitutional. Asserting a tort action where common sense would say not to do this stupid action, is affecting all businesses. This affects the ability for new market capital, job creation, etc.

[Webdude]

I am amused that the tool used by Ms. Mencimer's primary critics is, and continues to be, the ad hominem attack. Arguably Ms. Mencimer's comments fulfill the first two elements of circumstantial ad hominem (Tort reformers make certain claims; it's in their interest to make those claims because they're affluent and privileged.) She tiptoes toward the final element (therefore their arguments in favor of tort reform are false) but doesn't quite reach it.

The accurate criticism of her post then is not that it is ad hominem, but that it is otherwise logically flawed, falling victim to the hasty generalization or a biased sample. But I find it hard to believe that anybody reading the original post would truly thing, "She is speaking about every individual who advocates tort reform" rather than speaking of tort reformers in general. And strangely nobody has challenged her larger point about tort reformings coming from our nation's overprivileged classes.

But her critics sure do pour on the overt, actual, ad hominem attacks, even when accusing her of doing the same. Take Ted Frank, whose tale of childhood woe brought tears to my eyes. His characterization of Mencimer's argument ("Republicans support reform; Mencimer doesn't like Republicans; therefore, reform is bad") is a flat-out personal attack. Accusing her of being knee-jerk? Ad hominem abusive. Whining that she is privileged and lives in an expensive house? In attempting to mirror her comments, his accusations against her become true of him - if he's right and she engaged in a personal attack, albeit not directed at any individual, what's his excuse?

The comments in this thread are priceless.

[Ted]

So according to Webdude, attacking reformers as "overprivileged white guys" who go to private schools and don't care about "peons" is not a personal attack, but criticizing someone's poor reasoning is a personal attack. Whatever Webdude's definition of "personal attack" is, it's one unrelated to that used by English language.

Webdude also dishonestly paraphrases my argument, which explicitly noted that my lack of affluence growing up is utterly irrelevant to the merits of the argument for reform. I just thought it wildly hypocritical that Mencimer is criticizing the affluence of others from her million-dollar Dupont Circle townhouse.

The liability crisis hurts the disadvantaged a lot worse than the rich. I've financially benefited from the crisis: my salary in private practice tripled because of the increase in demand for attorneys; Vioxx litigation would've made me a millionaire had I not joined a thinktank; I've even made some money in the stock market by correctly anticipating market-moving legal decisions from publicly available data when I see the press get their legal analyses wrong and move the market in the wrong direction. But the money I made in going from zero to middle-class comfort came at a cost to the productive sectors of the economy. The tens of thousands of workers who lost their jobs because of the multi-billion-dollar asbestos fraud; the poor people stuck in public schools that can't educate their students because they'll get sued if they try to impose discipline; the pregnant women who are hospitalized for morning sickness because of the unavailability of Bendectin; the poor blacks who suffer increased rates of infant mortality because of the unavailability of prenatal care because of uncapped medical malpractice damages, etc., are not so fortunate.

[webdude]

Surely you cannot be as obtuse as you make yourself out to be. Surely you know the difference between a mere personal attack (you're ugly) and ad hominem (you're ugly, so that means your argument is wrong). Don't you? If you don't, educate yourself. If you do, well... it's typical of you. You come in with a host of new personal attacks and, true to form, can't even offer an honest argument.

Your crocodile tears for the poor are amusing, but either demonstrate you to be completely out of touch with the realities of tort reform and how the affect the average person - which I admit is a possibility - or are a smokescreen. And what a bunch of distortions you present, at that. Have you no shame?

[JHS]

Yes, webdude, its all those "other" people making personal attacks and ad hominems. Certainly "overpriveleged white guys" was meant affectionately. And when you call Ted "Obtuse", claim he "cannot make an honest argument" and accuse him of "crocodile tears", you mean those as terms of endearment, right?

Mencimer's generalization was flat-out wrong, not just "logically flawed", and there is nothing wrong with others pointing it out.

But I probably shouldn't waste my time. When people use ridiculous phrases like "have you no shame?", they are often intentionally trying to make their side of the argument look ridiculous.

[David Wilson]

Ms. Mencimer's argument that tort reform is really a "racist" movement reminds me of Peter Brimelow's line about the definition of a "racist":

Anyone who's winning an argument with a liberal.

[webdude]

Perhaps you weren't paying attention, JHS, just as Ted wasn't, to the distinction between a personal remark and ad hominem. I hadn't realized that the basics of logical argument and logical fallacies were so elusive. For the umpeenth time, from the standpoint of the "ad hominem" logical fallacy, it doesn't matter if the comments were personal, if they were taken personally, if they were accurate or not. It only matters if they are used as a basis to attack the speaker's reasoning. If I call you an ugly, stupid snot, then speak to the merits of your argument, well, that's rude, it's personal, and I hope it's wrong (that last bit was a joke, btw). But it's not "ad hominem" unless, as I reminded Ted, "You're ugly" is extended to "You're ugly and therefore your arguments are wrong."

I have read a lot of Ted's remarks here and elsewhere, and have looked over his editing history in the Wikipedia. He brought his personal character into issue over at his other blog when he attacked Mencimer, and his post here only serves as evidence of my point: I perceive Ted as a dishonest Internet bully who cares little about the accuracy of his argument. I base that upon the fact that he makes and repeats arguments he knows are false or misleading, resorts in almost every discussion to ad hominem attacks (the real kind, not just petty insults) and never seems to correct his tort reform brethren when they make claims he has to know are false or misleading. His conduct, in my perception, is dishonest and shameless. Within the context of the immedate exchange he's also a hypocrite, as his conduct is far worse than that which he ascribes to Mencimer. But none of that stops me from addressing the merits of his arguments. It just gives me the opportunity to kick some well-deserved sand back into a bully's eyes.

While Ted likes to pretend that he's not rolling around in his usual wallow, I'm not above a bit of pettiness here and there and I don't pretend otherwise. Nor do I pretend that my perceptions of Ted invalidate the fact that he does from time to time raise valid points on these issues, and even at times behaves graciously. Probably moreso in person than online, but yes I've actually seen it happen.

[Ted]

Speaking of logical fallacies, our anonymous poster poisons the well with vague abstract accusations that I have little doubt he would find impossible to make concrete.

When Webdude does slip from his unfair tactics and make specific accusations, he's easily refuted. Webdude falsely claims that I do not correct reform supporters, but it takes little trouble to find places where I critiqued unfair or baseless attacks on individual decisions or anti-reform arguments, especially since one of them was posted just yesterday:
http://www.overlawyered.com/2006/12/more_on_the_exxon_valdez_punit.html#comments
http://www.pointoflaw.com/archives/003424.php
http://www.overlawyered.com/2006/08/ted_on_the_return_of_the_coffe.html

Webdude's dishonesty is further demonstrated when he claims that *I* brought my personal character at issue because I responded to someone else who raised it and because I noted that my personal character (as well as that of my attacker's) was irrelevant to the merits of the reform argument.

Despite Webdude's efforts, this isn't about me. He can't point to any incorrect arguments I make about reform, much less incorrect arguments I made knowing they were incorrect.

[TC]

Seth-

If you think that tort litigation, and possibly more important the threat thereof, is NOT hurting this economy I've got a sale on bird seed for you!

As others have pointed out, lawyers have all but destroyed public education in this nation! Teachers are afraid! Hell parents are afraid of their own kids! Small business, almost every one of them opens the front door with fear every day!

YES tort litigation has harmed our economy and worse so, our entire society it continues to eat away at it like a cancer.

The legal industry should be very proud of itself!

[Webdude]

Oh, how funny. Ted Frank rolls in to save his own reputation, besmirched by the accurate report that he rarely participates in any discussion without invoking crude, childish personal attacks, cannot engage in honest debate, and cannot seem to stumble through a sentence without invoking a logical fallacy by....

You guessed it...

Resorting to his oh-so-typical ad hominem abusive.