In the past several months, I have spent a great deal of time talking to legislators, doing media interviews, and attending state or federal hearings on the subject of damage "caps" on pain and suffering. Throughout this process, the thing that has surprised me more than anything else is the perceived connection between damages caps and frivolous law suits. I cannot tell you how many times I have heard our opponents say things like "We need damage caps because there are too many frivolous lawsuits." When I hear this, I want to scream, "What are you talking about, damage caps have absolutely nothing to do with frivolous lawsuits. In fact, it is just the opposite, damage caps limit the rights of people who have legitimate claims!"
To some extent, one might expect members of the public to harbor such misconceptions, but it is scary when legislators do not understand the distinction. Lawmakers are supposed to know the issues before them, and furthermore, they have staff members who should prep them on the subtleties that escape their initial comprehension. Nevertheless, at legislative hearings on damage caps in both Harrisburg and Washington, DC, I have several times watched lawmakers wax indignantly about frivolous lawsuits and why we need damage caps to address the problem.
I bring this up not to embarrass or criticize the legislators, but rather to illustrate what a problem this is for those of us fighting these so-call "reform" measures. In the world of politics, and particularly public opinion, perception is reality. Thus, it doesn't matter that damage caps have absolutely nothing to do with frivolous claims or that they seek to restrict the rights of those with legitimate claims. What matters is that the people in the street and in Harrisburg think the two are connected. That becomes a real problem for us because the so-called "frivolous" lawsuit has always been our Achilles heel.
We can debate forever what is a truly frivolous claim, but however you define it, there is no getting around the fact that a large segment of the public have a belief that there are too many lawsuit being filed and/or an unacceptably large percentage of meritless claims being pursued. And for those folks, the "frivolous" lawsuit becomes Exhibit A for the proposition that we are a litigious society gone mad, both quantitatively (the number of cases filed) and qualitatively (the substance of those claims.) Again, it does not matter that statistics show that the number of malpractice filings is down or that insurance companies do not typically pay money on "frivolous" claims. What matters is their perception.
The danger, of course, is that to the extent this irrational "linkage" between damage caps and frivolous claims is permitted to persist, it becomes like a cloak of smothering ballast dragging down all those with legitimate claims. That is intolerable. So, what can we do to address the problem? (I say "we" because our clients lack the platform and wherewithal to address the issue and, thus, the obligation falls to us.) I say there are two things.
First, whenever we find ourselves in a discussion about damage caps with a neighbor, a media representative, a friend, or a legislator, we have to make a specific effort to severe that "linkage" between caps and frivolous claims by saying something like, "You under understand that damage caps don't have anything to do with frivolous claims. They are designed to limit the rights of people who have legitimate claims?" When I say this, I often get a sort of puzzled look from the person I am speaking with because, in truth, they don't understand the distinction, and that is why we need to make a special effort to point it out.
Second, we need to speak out affirmatively against frivolous claims by pointing out that "No one is in favor of frivolous claims," or that "People who have frivolous claims should not receive a penny of compensation." In so doing, it isn't necessary that we debate what is a "frivolous" claim, a matter subject to considerable disagreement. It is more important that we as lawyers are "on board" with the principle that the system should not be cluttered with claims that have no merit. We should also note that the trial lawyers supported a new initiative designed to do exactly that, namely, the recently enacted certificate of merit rule.
By taking these steps, we succeed in shifting the focus of the debate from a rant against frivolous lawsuit — an argument we can never win — to a discussion about why the government should be permitted to arbitrarily impose a "one-size-fits-all" result on people who have legitimate claims. When framed in that manner, we have a winnable issues, for it has been my experience that a large segment of the people who are ostensibly opposed to our viewpoint still accept the proposition that everyone is entitled to their day in court.
Thus, whenever anyone starts to talk about frivolous lawsuits in the context of damage caps, my reaction is, "Say what?" Perhaps you can try the same thing.