Although it is blindingly obvious that no compromise short of party-switching will persuade any Republicans to support President Obama, some commentators have suggested that adding some tort reform provisions could give the bill a bipartisan air about it.Â I’m skeptical: given that the current proposals are substantially equivalent to moderate Republican proposals in 1993, it doesn’t figure to help much.
That said, if an idea is a good one, and does not injure the coalition for what is now a good bill, there is no reason not to pursue it.Â
So here’s an idea: combine Republican ideas about caps on pain-and-suffering damages with traditional civil rights law provisions allowing successful plaintiffs’ attorneys to recover their fees.
Critics of the tort system have long questioned the utility of pain and suffering damages because there is virtually no way to make them rational.Â Thus, jury awards of these damages tend to swing wildly from case to case, and theoretically, because the successful attorney working on continigency could always hit the jackpot, he or she will have an incentive to take a less-than-meritorious case if a win could result in high pain-and-suffering damages.Â For this reason, tort reformers have long advocated caps on such damages.Â California’s famous MICRA sets a cap of $250,000 of pain-and-suffering damages in medical malpractice cases, now indexed each year for inflation.
But because plaintiffs’ lawyers work on contingency, these damages are there to pay the lawyers, not compensate the plaintiffs.Â Thus, a pain and suffering damages cap essentially gets rid of meritorious cases as well.Â And because the cap is set so low, the attorney’s contingent fee starts eating into the client’s economic damages as well.
My proposal here is to combine a cap with allowing prevailing parties to get their attorneys’ fees, as civil rights plaintiffs’ lawyers have done for years, on the federal level since passage of the Civil Rights Attorneys’ Fees Award Act of 1976 (now codified at 42 USC 1988).Â It is also fair to give the judge discretion to award a suitable “multiplier” to the prevailing plaintiffs’ lawyer if the case was particularly difficuylt, well-litigated, or had public significance.
This would give defendants — and their insurance companeis — the certainty they say that they need, plus not provide the bizarre incentives that uncapped pain-and-suffering damages could entail.Â It would more effectively protect clients’ economic damages (perhaps it would be necessary to prohibit any contingent fees coming out of economic damages) and permit attorneys to take worthy cases that they believe have a strong chance of success on the merits.
I realize that none of this matters to Republicans or some conservatives, whose version of tort reform is essentially to let the loss lie where it falls, but intellectually honest conservatives and liberals might be able to generate consensus around a proposal like this — at least in some future where policy debate becomes intellectually honest.