July 29, 2004, 12:01 a.m.
Liability Matters
Trial lawyers undermine personal responsibility — the basis of our liberty.

By Fr. Robert A. Sirico

Why does it matter that John Edwards has spent his career as a trial lawyer who raids deep pockets on behalf of complainants? It makes him a lifetime participant in one of the most destructive of American pastimes: litigation.

On the day that Edwards was introduced as John Kerry's running mate, I got a call from a doctor in St. Louis. He was, as you might expect, alarmed by the prospect of a trial lawyer — one of the nation's wealthiest and most powerful — becoming vice president of the United States. During the conversation, I asked him about Edwards's representation of parents who had a child born with cerebral palsy.

"Edwards made millions off crippled children by hypnotizing his juries and convincing them that cerebral palsy occurs during the birthing process," the doctor said. "There is absolutely no scientific evidence to support his contentions. But juries in America aren't usually about science, they're about theatrics. And that happens to be Edwards's forte."

He continued: In Missouri, doctors' insurance premiums have escalated 150 percent in the last three years and the state has not been able to pass meaningful medical-malpractice tort reform. Physicians in certain specialties — such as neurosurgery, obstetrics, and orthopedics — packed up and left the state after receiving a malpractice insurance bill of $500,000 on 30 days' notice. Although things are bad in St. Louis, the situation is even worse just across the Mississippi River in Madison County, Illinois. There, the doctor tells me, judicial awards in the megamillion range have attracted trial lawyers "like flies." Entire hospital departments have shut down as physicians attempt to flee to safety. Patients left behind in these communities are frequently forced to cross state lines to seek care.

The examples can be multiplied without end, and not just in medicine. Our professional and private lives are affected in so many ways that we have almost become used to it. They create a picture of a society of pseudo-victims looking for scapegoats.

Litigation in the United States has become a subtle form of regulation. Courts can be no less coercive than Congress, and yet their rulings are far more arbitrary, with deliberative juries substituting for the deliberative process of legislation. Neither is perfect, but juries in the last 50 years have become predictably punishing toward anyone with deep pockets and lavish toward anyone claiming to be a victim of the privileged class.

The economic costs are incalculable. Even more troubling is how the problem does not admit to an easy political solution. To further institutionalize such a system would be catastrophic for the economy as well as for morality — and the sense of personal responsibility that is at the core of liberty itself. Some measures, such as a limit on class-action suits and limits on non-economic damages, seem reasonable. Still other measures — such as limits on punitive damages — would surely do some good.

How has Senator Edwards responded? Despite his public-relations statements about wanting to help both doctors and patients, he has been an obstructionist on medical-liability-reform legislation. He is one of those in the Senate who has blocked legislation that would set a national limit on non-economic damages in malpractice suits. (The reforms, it should be noted, would still allow patients to recover medical costs and lost earnings in any malpractice award.)

Let's be clear. The goal of any legal reform should be toward an even-handed system of strict liability that would, insofar as it is possible, place blame for damages on those who caused the damage, while not unjustly punishing people because they would appear to have deep pockets. Admittedly, this goal is much easier to formulate than it is to accomplish, if only because the reforms themselves will be heavily influenced by trial lawyers who stand to benefit from evading the new law (and will know its ins and outs better than anyone else).

It is simply not the case, for example, that large corporations are innocent victims in the liability crisis. Many environmental issues concerning clean air and clean water became political issues in the first place because polluters were being protected from liability for damaging other people's property. It would also be tragic if tort reform ended up denying members of the public just compensation when they have been injured in a true case of corporate fraud or negligence — though we should remember that there is no more sure protection against bad business than a free economy that rewards excellence and service through competition.

The issue of the liability crisis and tort reform cannot ultimately be solved through the political system. What can finally address the problem is attention given to the underlying cultural and moral issue: It is impossible to preserve freedom without an equally strong commitment to the idea of personal responsibility. We should be free to act and to choose, but we should not be protected from facing the consequences — good or bad — of our behavior.

A religious corollary will help us understand this. God grants us the agency to make a choice between many varied alternative paths, some of which are good and some of which are sinful in varying degrees. At the core of the moral drama of religious faith is admitting when we have done wrong, ceasing to blame others, accepting our own personal culpability for error, seeking forgiveness, and asking for God's mercy.

One of the most difficult disciplines to learn is to zero in on one's own wrongdoing and accept responsibility for that — whether it is a sin of commission or omission — and forget about the part that other people may have played in tempting us or distracting us from the good. In the archetypal story of the Garden of Eden, Adam had every reason to blame others: the serpent, Eve, hunger, the tedium of life — whatever. But in the end, these other mitigating factors did not finally protect him from facing punishment. He was banished from the Garden. His excuses did not help him.

So, too, our excuses and blame-casting will not help us as a society or as individuals. The medical doctor in St. Louis despairs of a solution to the tort madness. He says: "New efforts at favorable jury selection combined with venue changes and ultra-liberal interpretations of case law have brought this country perilously close to a dictatorship by trial lawyers. And Edwards will lead it." One need not go that far to sympathize with this doctor, who's been in the cross-hairs of the litigation industry for years.

To address the problem of tort reform and legal liability, and provide final security for freedom and ownership, we must first turn inward and ask ourselves whether we might bear personal responsibility when events take unfortunate turns. Only once we have done this should we turn toward others, using litigation only as a means of conflict resolution and not as a tool for harming others unjustly.

Or we might put it this way: "Judge not, that ye be not judged. For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again. And why beholdest thou the mote that is in thy brother's eye, but considerest not the beam that is in thine own eye? ... Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother's eye (Matthew 7:1-5).

The great problem with the liability profession — and the lawyers who exploit the system — is that they precisely reverse this moral injunction, rewarding those who cast motes while ignoring beams.

— Father Robert Sirico is president and co-founder of the Acton Institute for the Study of Religion and Liberty in Grand Rapids, Mich.