To Be Fair . . .

I've followed the debate on Missouri Tort Reform fairly closely, as I handle mainly Missouri litigated files. Plaintiff's firms object to the new filing rules, which require "all lawsuits seeking money for alleged wrongdoing to be filed where the victim was first injured."

As pointed out on Notes from the (Legal) Underground:

In other words, you'll no longer be able to sue a company where it resides. There's a single, outrageous reason for the new law: to make it less likely that a corporation will have to face a jury in St. Louis or Kansas City, where people are perceived to be less sympathetic to big business.

Evan points out that companies are also superstitious about small towns, quoting from this article in Law.com:

In addition to the obvious -- everyone in a small town knows everyone else -- small town jurors are more likely to want to stick it to big corporations, particularly when the victim is local.

Crime and Federalism comments:

If the defense bar doesn't like that, it should lobby its clients to take reasonable care to prevent injury to foreseeable victims, rather than attack the system when the clients are held accountable.

Now, to be fair, I do need to point out that:

1) The majority of litigation in Missouri isn't encaptioned Big Heartless Company v. Poor Joe Schmoe. It's more like Jane Plaintiff v. Joe Defendant, but Joe Defendant's insurance company is on the hook for paying the verdict. And if it's an automobile collision, Jane Plaintiff's company will generally get pulled in on a claim that Joe doesn't have enough insurance. That will lead to a filing in Kansas City or St. Louis, if that company has an agent there, rather than the place the accident occurred. It's simply a matter of Jane Plaintiff's attorney choosing the venue that's likely to get her the most money, and rightly so. As the movie says, it's not personal, it's just business. Then when it comes time for mediation or settlement talks, Jane's attorney will bluster on about how juries in St. Louis or Kansas City are notoriously unpredictable and might give his client millions of dollars, and he or she fully intends to "ring the bell" on this one. Again, it's the attorney's job to maximize the settlement value of his case for his client. The attorney also generally gets a percentage of the verdict, and the tort reformers love to point that out, but I think most plaintiff's attorneys truly want to win the most money for their client regardless, because a) they're competitive people, as most lawyers are, and b) they feel it's their duty and the right thing to do. Conversely, it's the defense counsel's position to try to ensure that the recovery of the plaintiff is limited to only that which is truly due. If there's a danger of a disproportionate verdict in one venue, they will certainly try to move it to another. It would be irresponsible not to. But again, it's not because they're trying to "pick on" Jane.

2) In the hypothetical above, as with most cases, the company that truly ends up paying the verdict is the defendant's insurer. That's generally also the case if the parties are Jane Plaintiff v. Small Company Defendant. Only the ginormous national corporations and conglomorates tend to be self-insured. The company footing the bill has no real control over Joe Defendant or Small Company Defendant's behavior, so it is not a matter of teaching "its clients to take reasonable care to prevent injury to foreseeable victims, rather than attack the system when the clients are held accountable." You can't control them, you can't teach them, all you can do is try to vindicate them when they didn't do anything wrong, and try to keep the verdict rationally related to the harm when they did. The caveat: most insurers don't pay punitives. If Small Company Defendant has got the Pinto-style smoking gun in it's archives, it may well find itself on it's own.

3) Of course they have superstitions about small towns and big towns. And jurors who look you in the eye. Or jurors who don't. What you wear, and body language are also heavily discussed. Whether the jury pool will consist of farmers, or university professors, or just about any other stereotype you can think of. Lawyers on both sides of any given case are trying to look into some ethereal magic 8-ball and figure out what might happen if the case went to trial, which will give them an idea of the value of the case. Of course, the problem is that as soon as you think you have a system down, can really analyze the intangibles and come up with a solid prediction, reality has a really nasty way of biting you in the ass.

4) On a personal note, I'm not fond of the "why don't you get your client to stop hurting people?" argument, and not because of my professional capacity (I've worked both sides of this fence in the past). The job of the plaintiff's bar is to try to stack the deck to make recoveries both larger and easier to obtain. To do anything less is to do a disservice to the membership. The plaintiff's bar as a whole cannot be labeled ambulance chasers out to ensure each and every case ends up with an egregious or outrageous verdict. The job of the defense bar is to ensure that plaintiffs have to prove up their case and won't recover anything merely on passion or prejudice, but only the amount of money that is due for a wrong inflicted. Again, to do less is to do a disservice to the membership. The defense bar as a whole cannot be categorically villified as known conspirators out to screw over a helpless, injured individual. I realize that tort reform is a political debate, and such rhetoric incites the constituency, but I personally find it annoying.