Bill Childs notes a Baylor Law Review study polling Texas judges on whether they think there are problems requiring tort reform based on what they see in their own courtroom.
I can’t imagine why anyone thinks such a study will produce useful results. The study has typical issues, such as the typical anti-reform eliding of what “frivolous” means, ignoring that the state-law definition of “frivolous” differs from the common-sense meaning of the word used by many politicians. Another question asks whether judges have recently presided over cases where compensatory damages awarded were too high, but excludes cases where compensatory damages were required to be reduced by statutory limits, and the authors draw opinions from this intentionally biased question.
But there’s a larger problem with the very nature of the study. Judges who correctly run their courtroom and follow the law are generally not going to have runaway juries, so they are likely to say (and even say correctly) that their juries generally don’t produce outlandish results. The problem requiring reform are judges who are in the pocket of the plaintiffs’ bar, and create judicial hellholes, and let Mikal Watts and Mark Lanier run wild. If such judges thought there was a problem requiring tort reform, they wouldn’t let plaintiffs’ attorneys get away with what they get away with. Most reasonable judges would find it problematic if a plaintiff loaned money to a juror and had phone conversations with them during trial when a jury came back with an implausible multi-million dollar verdict for an overweight 71-year-old man’s second heart attack when he wasn’t even taking Vioxx, but the Starr County judge in Garza v. Merck signed off on the judgment: of course he doesn’t think anything’s wrong with that if he’s polled by professors, but that doesn’t make him correct.
Polling judges in judicial hellholes to find out whether there is a need for legal reform is like polling O.J. Simpson to find out if there’s a problem with domestic violence.
Nevertheless, expect to see the poll widely used by the litigation lobby and their academic water-carriers in upcoming months and years.
Post updated 10:30 PM to clarify nature of questioning.
4 Comments
“[T]he common-sense meaning of the word used by many politicians.”
Um . . .
Ted, you’re correct that no judge is likely to see himself as contributing to lawsuit abuse, and to that extent, the survey pool is biased.
What you overlook is that judges pay attention not only to the results coming out of their own courtrooms, but out of the ones next door and around the state. They weigh what they see elsewhere against their own experience.
Right now in Dallas County, for example, you may have a mix of judges comprising Democrats who recently won election in 2004 and 2006 (after breaking a multi-year lock on Dallas County judicial seats by the Republican Party), sitting alongside some (lucky) Republican judges who were unopposed in 2006 and perhaps Republican judges appointed to vacancies by Texas Gov. Rick Perry. What one group perceives of the others’ courts might be very interesting indeed.
So it’s a distorted survey pool, but potentially a very knowledgeable one. Its results need to be considered with both of those factors in mind, but I wouldn’t dismiss the results of this out of hand.
Mea culpa. In reading further into the study, I see that the questions asked judges about cases they’ve seen tried in their own courtrooms. So whatever observations they may have about what’s going on elsewhere, in other courts, presumably wasn’t picked up by this study.
In the immortal words of Emily Litella: Never mind!
i still wish Arnold had pushed his idea of taxing away punitive damages at 85% OR SO.