f/k/a archives . . . real opinions & real haiku

April 29, 2008

obama’s tort reform creds?

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 10:31 am

As you probably know, Barack Obama appeared on Fox News Sunday on April 27, 2008 (to the apparent dismay of many liberal bloggers who support negotiating with our nation’s enemies, but are boycotting Fox in order to “delegitimize” it. Please, kids, grow up with all your litmus tests.). Click for a Transcript of Obama on FNS.

For the purpose of this post, what interested us was this exchange between moderator Chris Wallace and Sen. Obama:

WALLACE: Some of your detractors say that you are a paint by the numbers liberal and I’d like to explore this with you. . . . As a president, can you name a hot button issue where you would be willing to cross (ph) Democratic party line and say you know what, Republicans have a better idea here. . . .

OBAMA: . . . I would point out, though, for example, that when I voted for a tort reform measure that was fiercely opposed by the trial lawyers, I got attacked pretty hard from the left.

At Point of Law.com, guest-blogger Carter Wood responded to this brief remark with the posting “Obama Cites His Tort Reform Credentials” (April 27, 2008). Wood notes:

“He’s no doubt referring to his February 2005 vote for S. 5, the Class Action Fairness Act, which passed 76-26. Ted Frank analyzed Obama’s CAFA vote and tort reform record in this December 2006 post, concluding, ‘As a reform supporter, I’m far from convinced that this makes him someone willing to cross the plaintiffs’ bar.’ Senator Clinton voted no.”

In his earlier Point of Law piece, “Obama and liability reform” (Dec. 27, 2006), Ted Frank weighed in on whether Sen. Obama had any tort-reform creds, discussing his vote for what Frank calls “the eminently sensible Class Action Fairness Act.” After noting that “Obama may have annoyed the lunatic left with his vote for CAFA,” Ted says, among other things:

“Obama didn’t participate in the negotiations to get Democratic support, and he voted for every Democratic attempt to eviscerate the bill with amendments. . . Obama didn’t break with the Democrats on any seriously contested tort reform measures: he filibustered medical malpractice reform, and was one of the votes to kill the asbestos reform bill (which effectively failed by one vote) . . . Obama claimed to support medical malpractice reform in his Senate campaign (or, at least, made pro-reform swing voters think that he did), but, then, so did Kerry and Edwards in their 2004 presidential campaign.

“Obama co-sponsored the MEDiC bill with Hillary Clinton; it was a federally-funded variation of the so-called “Sorry Works” proposal . . . But it’s hardly the move of someone daring to flout the trial lawyers who dominate the Democratic Party these days.”

I don’t believe that Barack Obama has ever tried to portray himself as a full-blooded, knee-jerk Tort Reformer. As far as I’m concerned, neither being totally for nor totally against every tort-reform proposal makes good sense or good public policy. The issues raised are complicated and need to be looked at with regard to the legitimate rights of both injured plaintiffs and accused defendants — assuring that all litigants get justice and our justice system is efficient and fair. There is no simple fix that can assure that those truly injured by bad-actors are fully compensated and that defendants are treated fairly both when blame is assigned and when damages are measured.

From my perspective as a consumer advocate and citizen looking for an effective and fair justice system, it seems that: Rabid proponents of tort reform mostly want to pay injured plaintiffs as little as possible, while rabid opponents of tort reform — mainly the “trial” or personally injury bar — want to be able to extract as much money as possible from defendants while assuring the biggest fees possible for plaintiffs’ lawyers.

In this context, I’m pleased that Barack Obama has not totally embraced “tort reform,” and — as a Democrat who worries about interest groups strangling the party and skewing its positions and priorities — am even more pleased that the Senator is unwilling to simply rubber stamp the position of trial lawyers by serving as their mouthpiece, puppet or platitude-peddling political paladin, rather than looking at each issue or piece of legislation on its merits.

I continue to hope that Sen. Obama will produce a comprehensive statement about our litigation system and necessary reforms and restructuring (including the need for full access to the courts). By choosing not to embrace either Tort Reformers or Trial Lawyers, Barack Obama increases his creds as a refreshingly different kind of politician.

prof yabut Prof. Yabut says: This posting is a follow-up to one of the most-visited posts in our five-year history was: “Inquiry to Obama on Tort Reform” (Aug. 4, 2004), from which we hoped to find out the position of Democratic presidential candidate Senator Barack Obama on tort reform and related issues. We never received any response from the Obama Campaign. [Note: Our Editor is a lifelong Democrat and has recently noted his support for Sen. Obama.]

Reminder: The f/k/a Gang [the Editor and his alter egos] are not “tort reformers” — we do not advocate arbitrary or blanket limits on the size of personal injury awards. We have, however, written extensively on the topic of the standard contingency fee (charging virtually every personal injury client the same percentage fee regardless of how risky or easy the case might be), which we believe consistently extracts excessive fees from clients. See, e.g., our four-part essay on the ethics and economics of contingency fees.

SlicingThePie This position has drawn the ire of the so-called “trial lawyers,” “consumer protection lawyers” and “justice lawyers,” who seem to have much power over traditional Democratic politicians (especially those seeking campaign contributions). For example, the supposedly pro-consumer Clinton Administration opposed a bill that would have merely told consumers that they have the right to negotiate the level of a contingency fee. [aside (May 1, 2008): See my Comment #5 below about a reaction to the above mention of standard contingency fees.] Now, finally, let’s go to the point of this posting:


  1. “Eminently sensible?!”

    CAFA = ridiculous

    The FJC’s report damning this legislation was held back (!) until *after* the vote.

    This is a true story.

    Comment by Anne — April 29, 2008 @ 10:45 pm

  2. Hi, Anne. Thanks for the comment. If you have a link to the FJC’s report please let us know. Who/what is FJC?

    Comment by David Giacalone — April 30, 2008 @ 7:06 am

  3. Oops, worked around the government too long! You speak in haiku, I speak in acronyms.

    FJC = Federal Judicial Center = http://www.fjc.gov

    Difficult to link to specific portions of the fjc site because they use frames and pdfs (icky) but I believe it is Willging & Wheatman, An Empirical Examination of Attorneys’ Choice of Forum in Class Action Litigation (2005). (There are several follow-up studies as well.)

    But from this particular report see, e.g., p. 4: “Our data, however, lend little support to the view that state and federal courts differ greatly in how they resolve class actions. For example, state and federal courts were equally unlikely to certify cases filed as class actions. Both state and federal courts certified classes in fewer than one in four cases filed as class actions.” etc.

    I seem to recall that CAFA passed in February, 2005; this report was released shortly after the date of passage due to political pressure from the anti-empirical-evidence lobby (the AEEL!).

    [If that doesn’t do it for you, refer to NCSC (“National Center for State Courts”) statistics here: http://www.ncsconline.org/D_Research/csp/CSP_Main_Page.html This data is not CAFA-specific but does consistently point to the fact that there is no tort explosion going on in state courts, that individuals rarely win, etc.)

    Comment by Anne — April 30, 2008 @ 11:05 pm

  4. Many thanks for the additional insight and information, Anne.

    By the way, I spent a dozen years working for the Federal Government at the start of my legal career, but I used a lot of energy trying to stamp out acronyms in our written material. That was so long ago, however (I left in 1988), that FJC might not have existed yet.

    Comment by David Giacalone — May 1, 2008 @ 6:37 am

  5. Dear Readers, If you’d like to see a good example of defensiveness and self-interest trumping facts, reason and legal-ethics, check out Barry Barnett’s response to my brief mention of standard contingency fees, in his posting today “Uniform Rates — Bah!” at his Blawgletter. Let’s hope his readers have the good sense to at least read f/k/a’s four-part essay on the ethics and economics of contingent fees before coming to their own conclusions.

    Comment by David Giacalone — May 1, 2008 @ 6:38 am

  6. I don’t know how old it is, but the FJC website has ca. 1988 (OK, 1997) functionality!

    Now that I’m in the real world, I’ve come to realize most people not only have not heard of the FJC, they also may have never visited. If you’re ever in DC the FJC is in the large glass building right next to Union Station. You don’t even have to catch a cab to get there, and the people are very nice.

    Comment by Anne — May 1, 2008 @ 10:52 am

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