Below is a perfect example of why it's so hard to have a tort-reform debate that doesn't devolve into sweeping generalizations and reliance upon worst-case examples.
Fist, a preface. As you know, thousands of lawsuits are filed in America every day. The cost of filing a suit is relatively insignificant. And it's pretty hard to prevent a suit from being filed--the main deterrant is a court's ability to sanction lawyers who file frivolous papers (claims, defenses, motions, etc.). But the lawyer avoids those sanctions as long as what he files is non-frivolous and not intended to harass, delay or drive up costs. This is an extremely low standard because we're not in the business of keeping people from their day in court.
Surely you've read the papers during your lives and seen examples of idiotic lawsuits (McDonald's made me fat, for example). And perhaps you've thought, "Why does our legal system allow this? That suit is just stupid, and it's now gonna cost all this money to litigate it." Republicans love when you think this, because it helps their pet cause and because it is not true.
First of all, the vast majority of lawsuits never see the inside of a courtroom. I believe the figure is more than 90% of all suits that are settled or dismissed without trial. But it's the latter option--dismissal--that gets utterly ignored by the media.
If you file a baseless, idiotic lawsuit, it will very likely be dismissed. End of story. The McDonald's-made-me-fat case? Dismissed.
Yet the media doesn't care about the outcome of these cases, they just want the instant gratification of reporting on the suit when it's filed. And unfortunately, there are many lawyers who will oblige them by taking idiotic cases just for the attention ("I'm gonna take down McDonald's!").
Usually, these suits are picked up by news-service or newspaper stringers whose job is to scan court records for things like this. But if they miss it, attention-whoring attorneys will helpfully spread the story themselves by calling newspapers or even staging press conferences. (Yes, they really do this. For all you Floridians, "Ellis Rubin.")
So we have a formula for easy demogoguery here.
- Suits are easy to file.
- Newspapers and wire services love to report on outrageous lawsuits, so they run the story.
- Republicans capitalize on this and demand tort reform. (And people think, "They're right. Stop suing McDonald's!")
- In the process, they villainize "trial lawyers."
...and the neglected step 5...
5. The suit that started all this gets dismissed, but no one gives a crap because the momentum's started and the suit's already engrained in the national consciousness.
And now, the the latest example:
CLEVELAND, Ohio (AP) -- A viewer is suing NBC for $2.5 million, contending that he threw up because of a "Fear Factor" episode in which contestants ate rats mixed in a blender.
Austin Aitken told The Associated Press he watches "Fear Factor" often and had no problem with past installments where the reality show's participants ate worms and insects in pursuit of a $50,000 prize -- but eating rats went "too far."
"It's barbaric, some of the things they ask these individuals to do," Aitken said Thursday.
Aitken's handwritten lawsuit contends the rat-eating made his blood pressure rise, resulting in being dizzy and lightheaded -- and vomiting. Because he was disoriented he ran into a doorway, "causing suffering, injury and great pain."
Asked why he didn't shut off his television before the rat-eating segment, Aitken said he couldn't do it quick enough.
NBC responded with a brief statement: "We believe that the claim is completely without merit."
Aitken, a 49-year-old part-time paralegal, said he wants to send a message to NBC and other networks with the lawsuit. He said he isn't concerned with winning a cash judgment in court.
"I just put any figure. You really think I expect to get $2.5 million?" he said.
A few notes on this. First, he appears to have filed it himself (his suit is hand-written, and he is not speaking through an attorney in the article). Why bother hiring a fame-whoring attorney when you can just whore for fame yourself? Second, if anyone cares, the reason he included the part about running into a wall is because physical injury is required for his particular claim--you can't just say watching something made you sick.
And finally (and most importantly), you can pretty much print the last line on your next local Republican candidate's pamphlet. He might as well have said, "I just picked a number, because the desparately-in-need-of-reform legal system lets me! Whee!"
This, my friends, is why it's so hard to have an enlightened tort-reform debate.