The Founders and civil justice reform

by Ted Frank on January 5, 2007

Justinian Lane, unable to refute on the merits the idea that it might be worth experimenting with health courts to see if they improve medical care and medical justice, resorts to ad hominem:

I believe our founding fathers were some of the greatest men who ever lived. Through sweat and sacrifice, they founded the greatest country in the world. And they believed that the right for a plaintiff to seek a jury trial was so important as to be enshrined in the Bill of Rights.

I have nothing but respect and admiration for the noble men and women who have died and are dying to protect our Bill of Rights and our Constitution. I have nothing but derision for the ignominious men and women who are dying to butcher those documents for corporate gain.

Very stirring, if completely meaningless. I not only believe, but know for a fact, that our founding fathers created Article V of the Constitution, which permits amendments to correct problems created by the Constitution itself—such as, say, its abhorrent endorsement of involuntary servitude, or the poorly-thought-out presidential election process that resulted in the 1800 election snafu and the Twelfth Amendment.

But one need not go even this far. The real flaw of Lane’s thoughtless argument is that in 1791, the common-law right to a jury trial contemplated the idea of special juries. Special juries were used for complex commercial cases, for example; juries of women were used to determine the truth of claims of pregnancy. No constitutional amendment is needed for medical courts; they are well within the Seventh Amendment definition and the Founders’ conception of trial by jury. See generally Professor James Oldham’s book, Trial by Jury: The Seventh Amendment and Anglo-American Special Juries.


Lane knows that his argument is wrong, because it was refuted in the comments of the original post:

We already effectively have legal malpractice (and business malpractice) cases decided by judges in the vast majority of instances. If lawyers were required to be held to the same standard as doctors, the majority of lawyers would be guilty of malpractice. The real question is why other professionals don’t get the same benefit of the doubt that attorneys do.

We have professionals, rather than lay juries, that decide social security disability and worker’s compensation and black lung fund and immigration cases. The jury system is not universal, even in America, and it (like the Constitution) is a means to an end, rather than an end in and of itself.

Lane went ahead and attacked me anyway without acknowledging or addressing those refutations. What are we to conclude about the honesty of Lane and the Drum Major Institute’s weblog?

{ 17 comments }

1 Deoxy 01.05.07 at 10:55 am

Here’s a more accurate version of that quote:

“I believe our founding fathers were some of the greatest men who ever lived. Through sweat and sacrifice, they founded the greatest country in the world. And they believed that the right for a plaintiff to seek a jury trial was so important as to be enshrined in the Bill of Rights.

I have nothing but respect and admiration for the noble men and women who have died and are dying to protect our Bill of Rights and our Constitution. I have nothing but derision for the ignominious lawyers who are letting others die after they butchered the meaning of those documents for personal gain.”

The problem is not jury trials, per se. I would LOVE to be judged by a jury “of my peers” (oh, look – a quote from the Constitution!)… which is currently quite impossible by any reasonable definition.

Lawyers have the ability to strike from juries anyone remotely close to being my peer by any definition other than plain citizenship, and that’s only because citizens are the only ones allowed on juries. I’m sure they are looking for a way around THAT as we speak.

If I am involved in a complex business or medical matter that lands me in court, my PEERS are other people who actually have some understanding of the subject matter at issue, not people who are too stupid to get out of jury duty.

In other words, I SUPPORT the Constitution. I acknowledge its wisdom in a grat many areas, and I would like to reform the system so that we go BACK to the Constitutional way of doing things, as we currently AREN’T.

2 KipEsquire 01.05.07 at 11:12 am

“And they believed that the right for a plaintiff to seek a jury trial was so important as to be enshrined in the Bill of Rights.”

For what it’s worth, let’s also recall that the Seventh Amendment is the only part of the Bill or Rights deemed not incorporated by the Fourteenth Amendment to apply to the states.

And it was those very same Framers who also did not guarantee a “right to a federal trial” over something like a malpractice lawsuit or a class action for pharmaceutical product liability.

So his argument is belied on that front as well.

3 Peter Nordberg 01.05.07 at 11:39 am

This post would come closer to being persuasive if, having accused Lane of ducking the issues in favor of inflammatory rhetoric, it did not conclude by drawing the promiscuous inference that “reform opponents” are dishonest.

It meanwhile continues to interest me, Ted, that someone posting at a site called “Overlawyered” should keep arguing that rules he perceives as highly protective of malpractice-committing lawyers represent not a legal anomaly warranting “reform,” but rather a model to be emulated for other professions.

4 Loren 01.05.07 at 12:36 pm

Did they forget the “peers” part of the jury trial. You’re entitled to a trial by a jury of your peers, not a trial by an assemablage of hooligans. Nowdays, juries are more and more selected for their availability and ignorance than any ability to really weight the facts of the case.

5 Ted 01.05.07 at 1:25 pm

Peter’s first critique is fair. I’ve edited my last paragraph.

As to the second critique, I wish Peter raised it in our debate over malpractice standards, but, in another forum, I’d be happy to discuss why it would be counterproductive to “reform” the legal system by changing the rules for establishing a prima facie case of legal malpractice to correspond to the medical standard such that colorable causes of action could be brought against a majority of cases litigated by attorneys.

6 Deoxy 01.05.07 at 1:30 pm

“It meanwhile continues to interest me, Ted, that someone posting at a site called “Overlawyered” should keep arguing that rules he perceives as highly protective of malpractice-committing lawyers represent not a legal anomaly warranting “reform,” but rather a model to be emulated for other professions.”

I THINK the point is that the inquality exists, and we should remedy it. If it is ridiculous to remedy it by giving the same protections to everyone, then we should take such protections away from the lawyers.

In fact, if we DID give everyone thos same protections, I think it would be quickly stripped from everyone… which would get us where you (and I) think we should be.

7 William Nuesslein 01.05.07 at 8:14 pm

I believe that medical mal-practice litigation is just a poor mechanism to provide adverse outcome compensation.

Whenever there is winners/losers situation, such as a trial, the outcome is going to be adverse for somebody. It would be imprudent to conform legal mal-practice. to medical mal-practice.

My friend Jim was zapped seven times with a defibrillator and then had several bypasses. When I visited him in the hospital a couple if days later, he was sitting in a chair talking about real estate.

The point is that juries and the puplic get worked up about a system of medicine that consitentently yields miracles day after day. Remember that the public got worked up about the WMDs in Iraq.

8 yclipse 01.05.07 at 9:52 pm

The constitution does not mention a jury “of [your] peers”, I’m sorry to say. It simply provides guarantees a trial “by an impartial jury of the state and district wherein the crime shall have been committed”.

9 roy 01.05.07 at 10:30 pm

re: “peers”

The US Constitution says nothing about peers. It’s “impartial jury”.

10 Tom T. 01.06.07 at 1:24 am

“If lawyers were required to be held to the same standard as doctors, the majority of lawyers would be guilty of malpractice.”

I largely agree with Ted substantively about special juries. However, since this post is about argument style, I can’t help but note that the sentence quoted above is an inflammatory, unprovable assertion that really has little or nothing to do with the topic of special juries.

11 Ted 01.06.07 at 2:13 am

In the debate over medical malpractice, one regularly sees reform opponents argue that “medical malpractice” consists of any “medical error.” (For an example, see plaintiff attorney Lee Tilson’s comments in yesterday’s post, or any law professor who cites to the IOM study as evidence that more malpractice liability is needed.)

“Medical error” is defined as an avoidable adverse result. If “avoidable adverse results” are malpractice, then, yes, the majority of lawyers are guilty of malpractice: 50% lose any litigation, a good portion of the winners fail to achieve 100% of their clients’ desired results, and I’m quite confident that scrutiny plus hindsight will find mistakes that arguably adversely affected clients’ results, especially if results include “legal expenses.”

I admit that the formulation in my comment that I quoted in the post is ambiguous, though. If I had spent more time being precise, I would have written, “If lawyers were required to be held to the same standard that many reform opponents seek to hold doctors, it would be possible to bring colorable causes of action against litigators in the majority of the cases that they try.”

12 David Nieporent 01.06.07 at 2:21 am

Tom, it’s only inflammatory if you read it out of context, as an attack on lawyers. Knowing Ted’s views, I think it’s clear it’s not; it’s an attack on med-mal standards. All you need to do as a plaintiff in a med-mal case is (a) have a bad outcome, (b) find an instance where the treating doctor made a decision which could have been made differently, and (c) find some doctor somewhere willing to testify that it should have been made differently.

Well, (a) in every lawsuit there’s a bad outcome for someone, and (b) lawyers have to make tons of strategic decisions in every case. Remember, it’s not just big decisions — it’s every decision. Take depositions; you don’t think that every deposition features at least one question that should have been asked and wasn’t, or that shouldn’t have been asked and was? You don’t think you can find a lawyer somewhere who would say, “I would have made a different decision here”?

(For further evidence, look at death penalty litigation. Anti-death penalty judges can ALWAYS identify errors made by the defense attorney. Have you ever seen such a judge say, “This lawyer made no mistakes whatsoever. It was a flawless representation from start to finish”? Even the pro-death penalty judges rarely make that argument; they just rule that the errors were harmless.)

13 Tom T. 01.06.07 at 12:50 pm

Ted, I get your point better now. Thank you for clarifying. And apologies for being snarky.

14 Justinian Lane 01.06.07 at 1:00 pm

David, perhaps you could either clarify “c” or add “d” stating something to the effect of, “Find some doctor somewhere willing to testify that the bad decision was a proximate cause of the injury.”

15 John 01.08.07 at 3:16 pm

There is substantially more to proving med. mal than A, B, and C.
For example, proving causation between the mistake and the ultimate injury, intervening circumstances, etc., etc.,
That’s why specialty juries may be a good idea. The problem though, is who comprises the special jury…doctors who own/operate/fund their own insurance agencies?
Attorneys, whose own biases and convictions may be far deeper and more dangerous to unbiased decision making than any lay person?
Or, perhaps we should have an aptitude test during jury selection…all the smarties decide the doctor cases and the dummies can go deal with the criminal cases?

I would love to hear more on the idea, but I still like the idea of 1)increasing the pleading requirement of med. mal. cases 2)requiring sworn expert testimony to be included in the initial pleading and 3)approval of the initial pleading by a small, qualified, and uncompensated (for this specific function)panel of medical AND legal experts.

16 Matt 01.10.07 at 12:26 am

“In the debate over medical malpractice, one regularly sees reform opponents argue that “medical malpractice” consists of any “medical error.” ”

One certainly does not see very many of the lawyers that try these cases make this mistake. But I guess that’s why you use terms like “reform opponents”. Any attorney who actually handles these cases knows very well that what you describe is not the standard.

17 Ted 01.10.07 at 6:42 am

That’s exactly why I use terms like “reform opponents.” Stephanie Mencimer, Center for Justice & Democracy, Drum Major Institute, ATLA, and countless academics and politicians conflate the issue of medical malpractice and medical error by referencing the Institute of Medicine study to falsely claim that “malpractice” kills tens of thousands of people a year.

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