Judges on trial

Leonard Pitts, Jr. wrote a really good column about the immorality that begins to develop when our judicial system is seen as a potential jackpot machine. For example:

Our scene is Wilmington, N.C., two weeks back. Twenty-three-year-old Brandon Fizer is working the custard machine at Kohl's Frozen Custard and Jumbo Burgers when it severs his right index finger at the first joint. Somehow the digit ends up in a cup of chocolate custard that is sold to the aforementioned Clarence Stowers. He takes a spoonful and finds something in his mouth that is definitely not chocolate custard. He pulls it out and is horrified. The owner of the store asks him to return the finger so that it and Fizer can be reunited. Stowers says no. The doctors treating Fizer make the same request. There is, they say, about a six-hour window during which reattachment is still possible. Again, Stowers says no. And why does he say no, boys and girls? Here's a hint: less than a day later, he was interviewing lawyers. *** I've been skeptical of President Bush's calls for tort reform. The idea of a medical or other professional wrecking or ending a life through negligence or misconduct then paying a relative pittance has never sat well with me. But on the other hand, who can hear this sorry tale without believing something has to be done about our litigious society? Consider the recent record. A blind man drives a car into a concrete barrier and sues. Two prison inmates shoot themselves with a smuggled-in gun and sue. A woman sees a man reading Playboy and sues. Kids get fat eating a steady diet of Big Macs and sue. Sue, sue and sue again. Welcome to the litigation nation. So who can be surprised that Stowers looked at Brandon Fizer's finger the way you would a winning lottery ticket, gazed upon the American legal system the way you would a Vegas slot machine? Who can be surprised that he could so easily and so readily check his humanity at the door?

The thing is, I don't quite agree with Pitts that tort reform is the way to go. I'd opt for judge reform. In the almost-twenty years I've spent practicing law, I'd say that, in 90% of my cases, it is the judges who let these dreadful suits happen. Theoretically, defense lawyers, early in the litigation, can bring motions attacking whether the law or facts support the plaintiff's claim. Most times, these attacks are valid, at least in part. Most times, the judges deny these motions. Why? Because judges are cowards. If a suit is kicked out on motion, the losing party (that is, the plaintiff) will invariably take it up on appeal. That means that the trial judge, who is omniponent in his little courtroom, is suddenly being scrutinzed by the appellate panel -- and those judges might disagree with him. How humiliating. It's so much easier (and safer) just to let every case pass through the system, no matter the cost to society, economically and mentally. If our judges were braver, and were willing to risk an appellate court's finding of error, many fewer cases would be litigated through to an extortionate settlement or a ridiculously disproportionate jury verdict. Of course, decades of garbage cases passing through the system means that the standards at the appellate level are lower now, too, and cases that would have been laughed at twenty years ago would be protected now. Still, my proposal that judges act more courageously would have some salutory effect, and might raise the lowest common denominator mentality currently governing our legal system.