In Search Of Common Sense Irina Manta • Lawyers Philip Howard and Dickie Scruggs debate Tort Reform January 2003

It is not every day that one encounters a face-off between anti-tobacco litigator Richard “Dickie” Scruggs and the vicechairman of Covington & Burling, Philip K. Howard, who is also an adamant tort reformer and author of “The Death of Common Sense.” The Yale Federalist Society accomplished this feat on November 13 by bringing the two legal giants together in a debate on tort reform.

Howard began the debate by arguing that today’s litigation system has harmed the fabric of our culture by making people naturally distrust the legal system. Physicians, for instance, see patients “as potential plaintiffs” and perform unnecessary procedures and tests to protect themselves against lawsuits. They also cannot be candid when speaking to their colleagues, because anything they say could later be used against them. Teachers have problems disciplining children in the classroom for fear of legal hearings. Howard mentioned the picture of a sad child leaning against an apathetic teacher who would not hug the child because the act could be interpreted as unwanted sexual contact. In other words, Howard believes: “Nobody is doing what they think is right” because of the justice system with its shaky standards.

He elicited many laughs with his description of a tag found on strollers, “Caution: Remove baby before folding.” Nothing can be proven when it comes to medical judgments or which products should have warnings. More seriously, Howard made a strong point about how no one knows today what the court will decide in a given case. He explained that people need to understand the law and how the justice system will interpret it in order to plan their lives accordingly: they want to feel good about doing what is right and bad about doing what is wrong.

It was Dickie Scrugg’s turn to give his interpretation of the American judicial system. His slick appearance and charming smile that would easily fit into a toothpaste ad were not quite able to make up for the holes in his arguments. “This is a great time to be a lawyer,” Scruggs told his Yale Law School audience. He believes that the justice system is becoming increasingly important in our society and accused Howard of wanting to limit the role of juries. Scruggs tried to differentiate himself from lawyers that work for large firms, such as Philip Howard. Scruggs sees big firms as process-oriented entities that protract legal proceedings in order to bill clients as long as possible, while lawyers like him are result-oriented. Scruggs warned Yale Law students against joining the ranks of corporate lawyers, and metaphorically spoke of these students being the next “Jedi knights” of the law.

His statements, wrapped in many words and smiles, could not help but boil down to a consequentialist approach to the law where any means are allowed. It is of course easier to present oneself as the champion of the masses than an enthusiast of due process. Scruggs did not answer Howard’s criticism that people do not know today how the legal system will react to a tort case and that this can have grave consequences on the functioning of society. He disagreed that physicians order unnecessary tests. Brushing aside extreme cases as occasional abuses that will happen in any scenario, he repeated that what is true of the tort system is also true of democracy by invoking Churchill’s words: “Democracy is the worst system except for all the others.”

Howard denied Scruggs’ accusation that he wants to take away people’s right to sue and claimed that he would rather like to apply more stringent criteria to cases. He emphasized that what really mattered was not what happened in the courtroom, but the impact on society. Innovation in many areas such as medicine is stifled because people are afraid of being sued. Howard wants to ensure that the law stands for something. Unfortunately, it was unclear at times what he meant by that and what kind of standards he would set.

Howard wants the legislature to decide what is reasonable for social problems instead of letting a jury or threat thereof have such a great say in matters of policy. The jury should only decide facts, not standards. The tort reformer tried to clear up a misconception: “There is no right to sue for anything … We’ve turned the idea of rights upside down.” Today, he said, anyone can just go sue out of anger. Again, one got a good idea of what people should not be able to sue for, but he did not elaborate on cases that represent legitimate litigation. While this is consistent with his emphasis on letting legislators decide this question, it leaves one somewhat dissatisfied; in the end, it might have been interesting to know what Philip Howard would find to be appropriate standards if he were in the position to legislate.

Trying to be diplomatic, Scruggs said that everyone has issues with the civil justice system and that there is no consensus on how it can be changed. His point that no lawyer would ever willingly take on a “frivolous” case seemed odd in the light of the lawyers who actually admit to ambulance chasing – unless that is all legitimate and benefits the public in Scruggs’ eyes. He believes that physicians and lawyers will always be natural enemies. At his mention of lawyers being able to be sued and disbarred like physicians, one could not help but wonder how many physicians had actually ruined lawyers. Scruggs claimed that insurance agencies use the risk of litigation as an excuse to raise premiums more than that risk actually warrants, which Howard later countered by saying that there is a factual dispute about this practice. In an attempt at humorous cynicism, he said: “When a worker kills his boss, it’s murder. When a boss kills his worker, it’s workers’ compensation.” He pointed out that Howard admitted that the role of juries would be restricted. Scruggs thinks this will lead to more cases of mandatory arbitration and “prevent the common person from having redress.”

Each side appeared to attack a system rather than presenting a constructive view of what should be done to correct the problems within the current judicial system. Howard responded to Scruggs’ remarks by denouncing today’s judiciary as “law à la carte” that does not present any consistent structure. Rather than suing HMOs, Howard said, bad healthcare providers should have stricter regulations imposed on them. He advocated the introduction of positive laws and possibly having judges make decisions, but not uninformed juries. While this seems to remove some of the uncertainty involved in torts today, certain politically motivated judges could still severely abuse the system. Scruggs argued that it took the tobacco litigations to finally put tobacco regulations into place as well. In other words, he strongly believes that legislation is the ultimate solution, but sees litigations as a good way to get there. Scruggs also emphasized that capping the amount people receive in torts would be wrong, given that one cannot put a cap on “pain and suffering.”

It seemed at times that the two lawyers were talking past each other. The rhetoric tended to be vague, and it was difficult to get a good grasp on what actions they would actually take if given the chance. Part of that can be explained, however, by the nature of the topic. Dickie Scruggs does not believe the tort system should change in any major ways; he is a man of action rather than a man of theories, who has had great financial success in the courts. Philip Howard, on the other hand, does not want a society where men like Scruggs can use juries to bring about reformulations of the law. The topic is so complex that a twohour debate naturally has difficulties solving the issue. In the end, Scruggs seemed unconvincing in his attempt to minimize the abuses the tort system has allowed so far. One would have liked to hear more from both Scruggs and Howard on how the culture is affected not just in terms of people’s expectations before the law, but also in how the idea of personal responsibility takes on new meaning if individuals can potentially be compensated for taking care of themselves poorly. Howard let Scruggs get away with painting a world where the innocent small man fights evil big business. It is perhaps at that point that a future debate on tort reform would have to pick up: how much common sense should be expected from the average man and what should be done if he fails to display it?

Irina Manta, Publisher, is a senior in Branford College.