As I mentioned a few days ago, I was recently called up for jury duty in a case that was slated to last six weeks. I was one of the first jurors called into the box, and voir dire (the jury selection process) looked like it was nearly complete. But then, counsel for the plaintiff dismissed me with his last peremptory challenge. I’ve been let off the hook, thankfully. I’ve served on a jury before, and while a fascinating experience, once was enough.

Of course, I wasn’t surprised to be dismissed. The only real surprise was how long it took. Personal injury plaintiffs generally don’t like to have a lawyer on the jury, because other jurors tend to defer to a lawyer, and plaintiffs often rely on appealing to the emotions of the jurors rather than legitimate legal issues. They know all too well that other lawyers are more likely to see through this, so lawyers are routinely tossed with the first challenge, not the last. Perhaps I struck him as more sympathetic.

I’m a busy man, and I was glad to be excused, but a tiny bit of regret lingers. The subject-matter of the case was interesting — It seems that there’s still some residual force left in the great tide of asbestos lawsuits we have experienced in this country. I have mixed feelings on the subject. Asbestos is no doubt highly toxic, and mesothelioma is a terrible disease. However, asbestos is also a very useful substance, which can be used perfectly safely if handled properly (and is still widely used in other countries). We use many substances every day which are similarly harmful when mishandled. For example, fiberglass insulation is extremely carcinogenic when inhaled, but nearly every house in this country uses it, and its effects on energy conservation are highly beneficial.

Of course, I have no idea about the merits of the particular case I would have sat on, nor am I prepared to debate the relative toxicity of fiberglass vs. asbestos. What I can say with confidence is that there has been an enormous amount of hysteria and out-and-out fraud surrounding the asbestos issue, which has made things all the more difficult for those who have meritorious cases. Mesothelioma can take up to twenty years to develop after exposure. What is a cancer sufferer to do if the company which exposed him is bankrupt due to a glut of frivolous and fraudulent asbestos cases filed by unscrupulous personal injury lawyers before he was diagnosed? Yet that same cancer patient will likewise be harmed by any efforts to block or limit liability.

Tort Reform

There are no easy answers, but absolute limits on liability appear misguided to me. For all the stories of ridiculous jury awards we hear, there are legitimate cases every day of people who frankly should receive substantial damages. Imagine, for example, if you were slated to have your foot amputated, and the doctor, who was high on pain medication, amputated the wrong foot? Would $250,000, the limit proposed by some lawmakers for non-economic damages, be enough to fairly compensate you for your loss? Put differently, if someone offered you $250,000 to amputate your only remaining foot, would you accept it? (This was a real case, by the way.)

On the other hand, we all can agree that frivolous lawsuits hurt everyone. So what’s to be done? Some states have proposed an intersting alternative. A lawsuit review-board composed of doctors and lawyers would be formed, to make a preliminary judgment about the merits of a suit. If the board ruled your suit to be legitimate, it could proceed normally. If it ruled your suit frivolous, on the other hand, you could still choose to proceed normally. However:

  • If you lose, you must pay the other side’s legal fees; and

  • Any lawyer who proceeds with, and loses, three cases ruled frivolous by the board, is summarily disbarred.

No limits would be placed on the potential reward, and jurors would never know of the board’s decision. This sort of solution has a lot of appeal in theory, but it has yet to be widely applied in practice. In other words, with apologies, the jury is still out. But it is the best idea I’ve yet seen for preserving the rights of those who have legitimate catastrophic injuries, while curbing the frivolous lawsuit feeding frenzy. I hope more jurisdictions will consider giving it a try.