Democracy in Peril

For every injured patient helped or civil right protected, we have a more well-known example of trial lawyer excess

By Steve Sebelius

No matter what the right-wing editorial boards, conservative think tanks and President Bush tell you, trial lawyers have a vital role to play in the American system of justice. In fact, conservative opposition to trial lawyers--and commensurate support for tort "reforms"--has a great deal to do with the fact that trial lawyers can level the playing field between the people and the powerful.

But the public rarely sees or understands this, because for every injured patient helped or civil right protected, we have a more well-known example of trial lawyer excess. The Twinkees made me do it. McDonald's coffee is too hot to be poured in a lap. And, by the way, McDonald's made my client fat.

It sure looks like somebody needs a celebrity spokesmodel.

And that's especially true given the events of last weekend, when the trial lawyers sued the state in order to get the ballot arguments for Question 3 rewritten, or even have the measure thrown off the ballot altogether. Question 3 is the Keep Our Doctors in Nevada measure, which would cap "pain and suffering" damages and attorney fees in medical malpractice cases.

Now, the doctors circulated their initiative properly, and got the required number of signatures. Secretary of State Dean Heller did his job properly, recruiting committees to write the "pro" and "con" arguments. And the trial lawyers themselves got into the act, authoring not one but two initiatives for the November ballot that, if approved, would effectively gut Question 3.

But that's just not enough.

With the ballot-printing deadline looming, the trial lawyers sued Heller, saying the ballot arguments in favor of Question 3 were misleading and failed to properly describe the effects of Question 3. Heller replied that it wasn't his job to ensure the arguments are true. The Supreme Court disagreed, and ordered him to call rewrite. And Heller did, recasting the language in the space of 24 hours.

Nope, said the trial lawyers. Still not good enough. We're going to have to strike this thing from the ballot, they argued at the beginning of the week, when this was written.

We shouldn't blame the trial lawyers for not wanting to compete in the court of public opinion. They have some pretty damn unsympathetic judges on that bench. On the Supreme Court, however, there are seven lawyers and not a single doctor.

Alas, this is a fight that should be fought in the open, with ideas, not in the Supreme Court with legal briefs. The doctors say their brethren are fleeing the state in droves? The lawyers point to state statistics that show the number of doctors in Nevada has grown every year. Doctors say lawsuits cause high premiums? The lawyers retort that insurance company stock market losses have more to do with premiums than courtroom losses. And the list goes on.

Instead, the trial lawyers have further cemented their bad rep by actively trying to keep Question 3 from voters.

In the court of public opinion, that's contempt.