By: Leonard A Sloane, President
This column is based on a speech given by PaTLA Past President Leonard A. Sloane to the 2lst Annual Convention of the Pennsylvania Trial Lawyers Association at the Sheraton Society Hill Hotel in Philadelphia, PA.
It is July of 1989, the defendant is alone in his prison cell. There are no doors, no windows, no sounds. He has been locked up for many months, but he has not yet met with a lawyer. Actually, he is not allowed to meet with a lawyer….
This is the investigation stage of the proceedings. The state can detain the defendant for any length of time while investigating him. Finally, when the investigators decide on a valid charge, the defendant is arrested while still in prison. Only then is the defendant allowed to see a trial lawyer. The lawyer has as little as two days to review the evidence that took the police months to compile.
The defendant is next brought to an open court. However, the problem with this court is that the judge has been carefully chosen by the State. The judge has the power to limit the number of people present and those who will testify. He can also limit and censor the evidence. Important trials are only open to Party members. The actual trial is quick with the judge alone reaching a verdict of guilty almost every time.
You see, in China there is no such thing as a “trial by a jury of your peers.” The underlying principle of the Communist legal system is the supremacy of power and politics over formal law. In China, the Party is the law. China has had centuries of legal reform; the word of the Party is the verbal threshold. In China, there are very few trial lawyers and there is absolutely no participation by the people. Of course, if you are rich or a privileged Party member, you fare better under this system. The rich and powerful always fare better when they do not have to be judged by a jury.
More than 3,000 Chinese citizens died in the June massacre. They wanted democracy. They died because they no longer wanted to be judged solely by the State. A trial by jury is an integral part of any democracy. Let’s hope that the world will be China’s jury and render a verdict of guilty.
In contrast, the American jury system has evolved over thousands of years. Yet today there are powerful groups, and now, even the highest leader of our Commonwealth who, with little respect for history and with the introduction of politically expedient legislation, would advocate that the jury system be abolished in some cases, and severely restricted in others.
In order to appreciate the value and importance of an adversarial system that functions without the influence of power and politics, let us do what has become fashionable in the 80s. Let us examine our “roots.”
The history of trial by jury began with the Greeks in the 4th and 5th centuries B.C. In early Greece, the people assembled to hear and decide on cases of civil law. This was called the “General Assembly.” However, as the society grew in complexity, and trials multiplied in number, constant appeal to the General Assembly became increasingly difficult. The problem confronting the Greeks was how society could secure popular control of trials without recourse to the General Assembly. The answer was found in the jury system
At the beginning of each year, 6,000 male citizens over the age of 30 were elected by lot to serve as jurors. This group was then divided into 10 jury sections of 500 members each. On the day of the trial, the General Assembly officer selected one of the jury sections and the case was presented. The plaintiff spoke first, usually in an uninterrupted appeal to the passions and emotions of a jury wholly ignorant of the law. Speeches were often pure demagoguery, lacking the evidence and cogency of tightly reasoned thought. The defendant next delivered his speech or presentation in a style restrained only by his sense of propriety. It was common for the defendant to call in his weeping children and wife in the hope of persuading the jury to vote for acquittal.
It was therefore the Greeks who formed the first judicial system in western civilization that adhered to the principle of trial by jury, and although the system was not without its failings, it did ensure against calumny and corruption which has plagued societies throughout history.
Next we have the Roman legal system, which has formed the basis for almost every legal system in the western world. In the Roman legal system, civil cases were presented before judges. The plaintiff’s lawyer spoke first, followed by the attorney for the defense. After a period in which evidence was presented and witnesses questioned, the Roman barristers engaged in what was called the “altercatio.” This altercatio was essentially a brief exchange of argument concerning the more important aspects of the case. The altercatio had a question and answer format between advocates, and was used to impress both positive and negative points on the judges.
In reaching a decision, the Roman judge consulted the only legal experts available, a group of private citizens knowledgeable in the law called the jurists. The advice of the jurists was actively sought and of considerable value to the judges for if it could be demonstrated that the judges acted with prejudice or partiality, legal action could be brought against them. So in Rome, juries, were, in effect, consultants.
After Rome, we begin to look to the modern jury system; however, there is great dispute among historians concerning the origin of the modern jury system. Many scholars assert that the Norman conquest of England in 1066 A.D. marked the first step in the establishment of the modern jury system. Others say Henry II was responsible for the jury system since he introduced more substantive legal changes than any other King.
The most significant aspect of the evolution of the English system was that, in many cases, the judge presiding over a trial would continually reject the decision of the jury until it reached the decision desired by the Crown. This high-handed style of justice eventually led to judicial reforms in England. Several juries of criminal and civil cases defied the government and asserted the autonomy in rendering a decision in opposition to the Crown. It is quite possible that if these juries had not defied the Crown, the English jury would have remained a mere channel for monarchical power.
We have traced our roots from Greece to Rome to England. The colonists brought the concept of the English jury system with them to America, and over the next 200 years, it has developed into a jury system that is second to none in significance in our society.
As can be seen, the rich history of our jury system is important. However, no concept, no matter how noble and proper, can weather history and survive the future without a clear purpose. What then is the purpose of the jury system in our modern society?
Every day, in many circles including newspapers, the legislatures, and even within bar associations, trial lawyers are being accused of being a “special interest group,” of using the jury system to promote their self-interests. We are portrayed as the greedy villains of society. However, my brother and sister trial lawyers, you must never forget that we are the only “special interest group” that has a very important constituency. Who are they? They are those victims we represent.
Let’s take a closer look at just who is calling trial lawyers a “special interest group.” First, the products manufacturers, certainly a “special interest group” unto themselves. These manufacturers want “tort reform.” However, history has demonstrated that the more conservative and restrictive the tort law, the more people are injured. When profit is the motive, individual safety falls by the wayside.
No one will forget the design of the Ford Pinto gas tank. A safety problem caused the tank to explode on impact, yet, an internal memo from Ford personnel, in effect, calculated that it was cheaper to pay for the body count than to recall the defective car.
Then there was the Challenger shuttle disaster. Did Morton Thiokol know the 0-rings were defective, yet, to meet a deadline, gambled and lost the lives of seven brave people?
Let’s not forget the doctors who are lobbying in the halls in Harrisburg. They are insisting on having their own way with a one-sided, medical malpractice reform bill, and they accuse us of being a “special interest group.” The doctors want to be the first group of professionals who receive immunity from negligent conduct. In their role as self-appointed deity of society, the only conversation they will have with you involves what type of insurance coverage you carry.
Of course, there is the insurance industry. This “special interest group” is the most ironic. It collects your money, promises to return it when you are injured, yet will spend thousands of dollars to keep you from recovering and millions of dollars to bamboozle the public into believing there was an insurance crisis. Insurance companies want to change the tort laws and never pay anyone back the money they originally collected.
Finally, there is another very “special interest group” out there, a new kid on the block, the Tobacco Industry. The industry knew many years ago that cigarettes would cause cancer, lung disease, addiction, and death, yet they hid this from the public for profit and made it macho and glamorous to smoke. The Tobacco industry is presently mounting the most powerful offensive in the country, right here in Pennsylvania, to change the products liability laws because the industry is afraid of the people of Pennsylvania speaking through their jury system.
In every legislative battle, we are constantly bombarded with anecdotes from our adversaries. These anecdotes, usually describing alleged frivolous lawsuits or runaway verdicts, form the motivation behind proposed restrictive tort legislation. It is about time we told a few stories of our own. Stories about victims who were represented by trial lawyers who are members of our organization.
There was Janet from Harrisburg. She was severely injured in an automobile accident. A press clipping describes her life since her injury—
Harrisburg—[Janet] says she’s been living in a make-believe world in the last year, a world of lost days, loneliness, pain, frustration, and questions.
On June 16, 1985, their plans were shattered in a car crash caused by a drunken driver. [Donald] was killed that Father’s Day at age 64. [Janet] was sucked out the car’s window and flung more than 50 feet.
[Janet] was so severely injured that she was not expected to live. She spent three and a half months in the hospital and two weeks in a nursing home. She suffered extensive head, shoulder, arm, hip, and leg injuries. Shortly after the accident, surgeons pieced together her shattered left hip.
Her right arm was broken in five places and had to be repaired with bones from a bone bank. The arm was in a cast for eight months, and when the cast was removed, ‘it took me a couple of months to get back to writing;’
The crash shredded the skin on her legs, damaging the nerves and leaving her with no sense of touch in portions of them.
Her broken left shoulder will never return to normal. Her left eye was injured, and the pupil no longer dilates.
But, if the driver who injured Janet was a municipal bus driver high on alcohol and drugs, Janet would not be fully compensated. You see, “special interest groups” previously passed a law placing caps on pain and suffering. They call this legislation by a fancy name… the Political Subdivision Tort Claims Act.
Why, one legislator today would even allow the irresponsible driver of the vehicle that injured Janet to “opt out of the tort system,” and elect not to be sued no matter how reckless the driver’s conduct. Certainly, this legislator is no Friend of the victim.
There’s Christina, an 11-year old girl who thought she would help her mother with the laundry. Not knowing any better, Christina lifted the lid to the washing machine while it was in the spin cycle and reached in to get a towel. Well, the machine did not turn off like it was supposed to because many years ago, the manufacturer designed a safety cutoff switch that was not corrosion-proof. Can you imagine, a safety cutoff switch in a washing machine that corrodes? Christina reached in to grab a towel while the machine was still spinning. Her arm was amputated from its socket. Another “special interest group,” the manufacturers, want to change the products liability laws so this little girl can’t recover, or if she does, the manufacturers want her damages reduced to present worth.
Then there’s Michael. He was a healthy 19-year old who was swimming in his friend’s pool. Michael dove off the diving board and hit his head on the slanted end of the pool called a hopper bottom. He became permanently paralyzed from the neck down. The pool manufacturer not only had studies showing that this pool was too small to use with a diving board, but also had research showing that diving boards on undersized pools have paralyzed many victims. Nevertheless, pool manufacturers install diving boards because it helps to sell pools. These manufacturers want to be protected from liability. Think what it must be like to be Michael, one of our victims, to be a quadriplegic, paralyzed from your neck down. Imagine being buried in the sand up to your neck for the rest of your life.
We recently survived a legislative battle in Harrisburg in connection with automobile insurance reform. However, at one point, we were on the defensive after a significant vote in the House. Legislation was passed by the House that would have substantially limited the rights of innocent victims.
Our legislative antagonists, the doctors, the manufacturers and the Chambers of Commerce saw the outcome of this vote as a possible opening to seek more restrictions on victim’s rights. To those adversaries, let me say this, “don’t be fooled by our setback in one battle. As you can see from the final vote in the Senate, our victims will win the war!”
It is time that we went on the offensive. It is time for the victims’ lawyers to advocate legislation that would make our products liability laws tougher on the wrongdoer. If a jury finds that a person was injured by a product that should have been recalled by the manufacturer, let the jury award treble damages. In addition to threatened Rule 11 sanctions against lawyers alleged to have filed unmeritorious lawsuits, let’s change Rule 11 to include sanctions against insurance companies for asserting frivolous defenses.
There is one message that I believe must go back to the legislators we have supported over the years, and that message is “don’t take this group for granted.” To those of our friends who stood tall for us and voted to preserve the constitutional rights of those victims we represent, we intend to provide you with even more support in the future, regardless of party affiliation. But to those who found it politically expedient to abandon our victims, we will not quickly forget. We have supported you for many years, and when it counts, we expect you to stand up for individual rights and access to the courts. We have now been forced to send you a special message.
We cannot, however, point fingers at others without looking at ourselves. If we permit complacency to set in, if we forget our special interests, then it will only be a matter of time before the following scenario unfolds:
It is the year 1993, a sunny afternoon in your law office. A number of new clients are in your waiting room.
The first client you interview was partially paralyzed as result of a mistake by a doctor during spinal surgery. You listen to the client. You know there was malpractice, but you must turn down the case. Why? Under the Medical Malpractice Reform Act of 1991, as amended in 1992, you know you will need the expert testimony of three Pennsylvania board certified physicians whenever one board certified physician is a defendant, and that’s an impossible task.
The second victim you interview is a member of a local labor union. He was injured at work. He now has no right hand. It was chopped off by a paper cutting machine. You have discovered internal memos that reveal that this particular machine has claimed many fingers and hands since it was manufactured 18 years ago. You cannot take this case either. Under the Products Liability Reform Act of 1991, there is a 15-year statute of repose that protects the manufacturer. Unfortunately for your client, the manufacturer stopped recalling the machine right after the law was passed.
The last client in your waiting room was in an automobile accident. She suffered severe strain and sprain of her neck and back. She is a single parent with two children. She works at a local supermarket. Because of her pain and suffering, she missed so much work since the accident that she lost her job. She is severely depressed and her children are being neglected.
You guessed it. You cannot take this case either because under the Consumer Automobile Insurance Act of 1990, her doctor would not report that she has suffered a “permanent loss of bodily function.” You send all three clients away. They all go back to their homes. All are alone, no sympathy no understanding, no fair and adequate compensation, just frustration. They will live the rest of their lives as though they were living in a prison cell. “All alone in a prison cell,” that’s where this column began. These injured victims have been in their cells for many months and will remain there for many years. They tried to get help from a trial lawyer, but the state took away access to the court system. All three victims are wondering just what country they live in. Is their future any better than the future of the students in Tiananmen Square?
My brother and sister trial lawyers, we must never let these fictional stories become a reality. With your help, it will not happen.
I am proud to be a trial lawyer. My message in the upcoming year, in the face of the most devastating assault of the decade on our roots-jury system, will be to remind everyone that yes, Pennsylvania Trial Lawyers Association is in fact, a “special interest group,” and our “special interests” are those victims we represent. Those victims, who, without our help, will become wards of society, individuals with no sense of pride. In the upcoming year, whenever someone begins to attack trial lawyers, tell them about the horror stories that you know have resulted from negligent conduct. Tell them about the unnecessary and unwanted pain and suffering of your clients. Tell them about the safety decisions made in corporate board rooms, but above all, speak with pride when you tell them about the good you have done, and the happiness you have brought to those victims you represent. Stand tall, the fight has just begun.