February 2002

Letters

Andy Cooley's response to a September Bar News editorial by Mark Panitch was riddled with factual errors and defense-bar folklore.

Cooley suggests the plaintiff bar is responsible for the mythical eruption of junk lawsuits which in turn force insurance companies to increase premiums. He offers no evidence to support these bogus claims because, very simply, none exists.

Corporations — mostly insurance companies — have bankrolled the myth of the "litigation explosion" in a calculated attempt to strip ordinary citizens of their legal right to hold wrongdoers accountable in a court of law. The fact is, insurance companies want to collect premiums without paying legitimate claims. They have driven their own policy-holders to court in an effort to make injured citizens go the distance when collecting on a service for which they have already paid.

The rate of lawsuits in America at the national level and in Washington has actually declined. The economics of the contingency-fee system encourages lawyers to reject loser cases and the "junk" lawsuit. And if a lawyer pursues a meritless case, the judge and jury are there to reject it.

Most Americans who have been injured by the carelessness of others do not file tort cases. Consider that only 1.9 percent of civil filings per 1,000 people are actually torts, compared to the 16 percent for all other civil filings. Studies have revealed that injured citizens file a minute number of lawsuits in our courts. In contrast, nearly one-third of our courts are clogged with businesses suing businesses.

A Harvard study of medical malpractice found that only two percent of people injured by negligent medical care filed suit. [Paul C. Weiler et al., A Measure of Malpractice, 73 (1993).] The conclusion is further substantiated in a recent study by the National Center for State Courts, a nonpartisan organization that compiles court statistical data. The study found that tort filings have decreased since 1996. [Brian Ostrom & Neal Kauder, National Center for State Courts, Examining the Work of State Courts, 1998, 8 (1999).] In contrast, a recent citizen-action study found that businesses file 10 times as many lawsuits as injured consumers. (Source: Willful and Wanton Hypocrisy: Tort Reformers Flood Courts with Lawsuits, 1995.) I wonder why we never hear the defense bar proposing tort reform to curb the filings by corporate America?

Tort reform has never done anything to improve insurance premiums for consumers and never will. Tort reform makes scandalous corporate giants lawsuit-proof and unaccountable to injured citizens. Surely, many of you remember the so-called liability insurance crisis of the 1980s, when insurance rates were skyrocketing upward at rates of over 300 percent. Insurance companies blamed a litigation explosion, runaway juries and frivolous lawsuits as the cause. It didn't seem to matter that the insurance industry produced no data to support their claims. In fact, numerous studies and statistics showed that tort claims were stable, jury awards were steady and responsible, and no evidence of an epidemic of frivolous lawsuits existed. And of course, A.M. Best reported that insurance profits escalated by 600 percent in 1986.

Of course, after the devastation inflicted on consumer rights, the true cause of the liability insurance crisis was documented. Numerous studies, including those conducted by Washington Insurance Commissioner Richard Marquardt, the National Association of Attorneys General, and Consumer Union, as well as industry articles and reports, determined that the "insurance crisis" was self-inflicted by the industry. Insurance underwriting practices of the high-interest era of the late 1970s and mid-1980s were the real cause of this crisis.

A recent study conducted by the New York-based Center for Justice and Democracy found states proposing severe tort-reform legislation experienced just as high an increase in insurance rates as states that enacted little or no change in their tort laws. In fact, arguably, the states in the middle tier of tort restrictions enacted, which because of the 1986 act includes Washington, incurred the highest level of insurance cost increases. In fact, Washington product liability insurance costs were the second highest in the nation. (J. Robert Hunter and Joanne Doroshow, Center for Justice and Democracy, Premium Deceit: The Failure of Tort Reform to Cut Insurance Prices, July 13, 1999.)

So what was the response of the insurance lobby? Nothing less than a real study in rhetorical sleight of hand. Sherman Joyce, the president of the American Tort Reform Association (ATRA), responded to this report in Liability Week magazine: "We wouldn't tell you or anyone that the reason to pass tort reform would be to reduce insurance rates." Victor Schwartz, ATRA's general counsel and chief lobbyist, was quoted in Business Insurance: "Many tort reform advocates do not contend that restricting litigation will lower insurance rates, ... and I've never said that in 30 years. "

I hope I'm preaching to the choir. But just in case — it needs to be said. Thank you.

I appreciated Helen Anderson's summary of the current controversy over the proper method for citing legal authority in legal writing. I fully concur with her position that "fluidity, logic and policy are all important to legal reasoning, but courts are supposed to tether their arguments to authority." However, her "knee-jerk1 reaction" and decision to support in-text citation as opposed to footnotes appears to assume that all readers of legal arguments or opinions are lawyers.2 That is simply not the case.

As an administrative law judge (ALJ), I have learned that the majority of the litigants appearing before me, and subsequently reading my decisions, are pro se and without much education beyond high-school level, if that. They are primarily interested in whether or not I am ruling in their favor or upholding the agency's action which was adverse enough to them to merit their request for a hearing. If my audience's interests extend to knowing why I am ruling for or against them, at best, they are interested in citations to provisions of the Washington Administrative Code (WAC) which govern their situation. Thus, in addition to an in-text citation, I occasionally include the full text of applicable WAC regulations in my opinions. However, most of my readers are absolutely not concerned with additional sources of legal authority such as case law or even citations to the Revised Code of Washington. Therefore, I typically banish these authorities to footnote status, allowing my readers to interrupt their reading only if they truly wish to be further informed as to the basis for my rulings. In my opinion, this style of writing serves the purpose of keeping legal writing and reasoning understandable to our most important consumers: the people.

Admittedly, my fashion of decision-writing may not be endorsed by or appropriate for all levels of courts, but I can appreciate this same approach when taken by our higher tribunals. Public access to and understanding of our judicial system must remain a paramount goal. If courts lose sight of their true audience, we risk the system itself becoming just a footnote in our citizens' lives, not a trusted and valued part of their civil rights.

1. This is Ms. Anderson's own term, not mine.

2. For instance, Ms. Anderson says "it is true that the citations clutter the text with strings of numbers and gibberish abbreviations, but lawyers quickly learn to skim over these cites and pull from them certain vital information.…" She goes on to state that "the serious legal reader will never simply glide through [the text] to the end. Most lawyers will need to interrupt their reading to see what authority underpins the reasoning."

I object to the various proposals of the King County Bar Association to change drug laws to a "treatment" model.

The reason we have criminal sanctions for use of drugs such as heroin and methamphetamine, and perhaps cocaine, is that it is very bad for people to become addicted, and these drugs, as well as others, are addictive. Addicts become totally disabled, pay attention to nothing other than getting drugs, abandon their families and commitments, commit crimes to pay for drugs, cause damage to society in general, and drown in a swamp of illegal activity. This is bad.

Drugs are highly inviting because they are fun, they provide a social connection, and they are profitable. There are plenty of inducements to beginning a career as a drug user.

Criminal sanctions are supposed to, and do, discourage people from becoming drug addicts. They do not work all the time, as there is no method of enticing all the people to do any particular thing, but they probably work better at discouraging people from entry into drug and criminal activity than they do at getting people out of criminal activity. This is why there should be penalties for first users of drugs.

The bar, I think, wants to abandon criminal penalties and simply ask addicts to go to treatment if they are caught in criminal activity. This terrible idea will encourage the public to become addicted, because the only penalty is the limp threat of "treatment" — the end of Washington. Most defendants know they will get more than one chance. Many, probably most, defendants do not want treatment in the first place. They want to be left alone. If they wanted treatment, they would have asked for it. Even those who do want to change, or who might be ambivalent about it, are likely unable to stay clean. It is not easy to be a recovering heroin addict, especially if you have no community or employment or family resources to help. The courts are littered with people who do not comply with "treatment." The treatment model is a model that says, "destroy yourself, then try to rehabilitate yourself."

The King County Bar says punishment does not work. The penalties for possession and selling cause individuals to avoid detection, but they are not severe enough to frighten people away from use and sales. The penalty for a first-offense possession of heroin is zero to 90 days, which means zero to 60 days of actual confinement. The penalty for a second offense is two to six months, which means 40 days to four months actually served. The sentence ranges are deceptive; virtually all offenders serve two-thirds of the sentence. These penalties are manageable for most defendants; they do not like them, but they are not something they cannot live with. As they commit more offenses, they become acclimatized to jail time, and the range of confinement they can live with increases.

The penalty for delivery is higher, 21 to 27 months, which usually means a bottom-range sentence of 21 months, of which 14 is served, and often there is pre-release towards the end of the sentence. If a person has six priors, the range is only 17 to 22 months, which is usually the bottom range of 17 months, of which only a little less than 12 months are served. Also, there are numerous possibilities for negotiating a better sentence: DOSA, or drug treatment, which is two-thirds of half of the midrange sentence; reduction to conspiracy, which has a range of zero to 12 months; first offender waiver; and other possibilities. Contrast this with the range for murder one, which is 240 to 320 months, with a midpoint of 23 years. Murder is not common, in spite of the millions of firearms that are present here and throughout the United States.

There is a place for treatment, and there are brave people who have recovered from addiction. But there is also a place for sanctions, and the Bar Association should leave the matter of adjusting drug policy to the Legislature. After all, they speak for the entire public.