I have been a plaintiff’s lawyer for 32 years. Over the course of those years, I’ve learned three things that all of you know well, but we need voters and lawmakers to better understand: (1) plaintiff lawyers perform work that improves public safety; (2) powerful industries are pursuing opposite objectives with enormous success; and (3) plaintiff lawyers are essential guardians standing between corporate wrongdoing and public health because governmental regulation often fails to do enough.
The work of plaintiff’s lawyers is a primary reason that effective seatbelts and airbags now come standard in automobiles; that perennial institutional concealment of clergy sexual abuse of underage parishioners was exposed and reformed; that American manufacturers stopped including asbestos fibers as an ingredient in the design of thermal insulation and building products; that highly addictive prescription opioids are no longer promoted to doctors and patients; that several brands of asbestos-contaminated talc-based cosmetic powders have been withdrawn from the market; and that injurious drugs like Vioxx, Bextra and Accutane are no longer prescribed and sold.
Plaintiff’s lawyers improved public health by successfully pursuing claims for clients harmed by defective products and corporate misconduct. In those efforts, they forced changes in corporate or institutional behavior that benefitted society as well as individual claimants. As discussed in “The Role of Lawyers in Changing the Law” by Paul H. Rubin and Martin J. Bailey, in these and other respects, plaintiff’s lawyers work collectively as a public health and victim advocacy group seeking legal change through the litigation process.
However, the law that governs proceedings in the civil justice system is not fixed; it consistently changes to reflect the interests of the most politically influential. Over time, the winners and losers of legal disputes are the same winners and losers of political contests. The party in power wields its influence to shape outcomes in the civil justice system that meet the objectives of its largest financial supporters.
As we’ve repeatedly witnessed, when a few injured people obtain substantial settlements or favorable jury verdicts against companies in a particular segment of industry, that industry uses its financial and political power to repeal or weaken the laws that have been costing them money in the civil justice system. Laws are passed federally and/or in states to immunize whole classes of industries from legal liability in personal injury cases, such as from tobacco or guns. Arbitrary damage caps are placed on the amount of money any wrongdoer can be forced to pay for physical pain or mental anguish caused by their defective products or their misdeeds.
In states all around the country, medical malpractice claims are now capped so that the amount of money any medical practitioner or healthcare provider can be forced to pay for a patient’s pain and suffering is less than the cost injured patients will likely incur to prosecute the case. Medical malpractice claims, even ones caused by egregious acts of negligence or recklessness, are often too economically constrained by law for seriously injured patients to pursue, which is the intended goal of the large insurance and managed healthcare lobbies that write these bills for their allied lawmakers to codify.
As a people, we are protective of our Constitutional rights, but only some of them. Debates over the contours of the Bill of Rights frequently decide elections. Voters, through candidates for political office or judicial positions, fiercely debate how broadly or narrowly the Constitution protects private gun ownership and whether people are entitled to bodily autonomy in making reproductive decisions.
Yet elections are rarely, if ever, decided because one candidate is a more reliable protector of our Seventh Amendment right to trial by jury than their opponent. I believe they should be. I agree with Thomas Jefferson, who declared emphatically in a letter to Thomas Paine in 1789, “I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.”
Nobody denies the existence of the Seventh Amendment, and yet, no one can empirically dispute that Americans have been stripped of this existential promise piece-by-piece, year-by-year for the past two decades.
In sum, the work you do for deserving people serves not only your clients but affirms an essential Constitutional right. Keep fighting not only for your clients, but for everyone’s right to trial by jury.
