February 28, 2004
THE AIR FORCE ONE-CHASER:
John Edwards: The Lawsuit Industry Puts Its Best Face Forward: A look at John Edwards's legal career provides a window into the flaws of the legal system that made this mill worker's son a multimillionaire. (Stuart Taylor Jr., 2/25/04, Atlantic Monthly)
Edwards's autobiography, Four Trials, shows the tort system at its best, serving the indispensable functions of compensating injured victims and deterring dangerous conduct. But that's not all the book shows. And a preliminary look at Edwards's legal career provides a window into the faux-populist pretenses and other flaws of the system that made this millworker's son into a multimillionaire.One of the book's four trials grew out of a heartbreaking accident in which a 4-year-old boy was orphaned when a tractor-trailer killed both of his parents. The truck driver, who had jackknifed across the double yellow line into the path of the parents' car after skidding to avoid rear-ending another car, pleaded guilty to reckless driving. Edwards, hired by the orphaned boy's grandmother, sued the driver's employer, a large textile company, and won a jury award of $2.5 million in compensatory damages plus $4 million in punitive damages. Assuming that Edwards (whose book never mentions his fees) took the standard contingent fee of about 33 percent— or more than $2 million—the award would cover the cost of the boy's upbringing and leave him a millionaire three or four times over.
The compensatory award's generosity seems appropriate, in light of the boy's incalculable emotional loss and the need to deter unsafe driving. But why the $4 million in punitive damages? It was not to punish the driver, Edwards explains: The grandmother thought he "seemed like a decent man, and she believed his remorse was genuine." Rather, Edwards persuaded the jury to punish the employer for paying its drivers according to "how many miles [they] covered," and thus to send a message to the trucking industry to sin no more. Paying drivers by the mile, Edwards argued, encourages them to be reckless and stay behind the wheel too long.
But nowhere in the book's 27-page discussion of this case does Edwards claim that this driver was violating the speed limit, or working more than the 12-hour shift allowed by law, or tired. Nowhere does he suggest that paying drivers by the mile was unusual in the trucking industry. Nowhere does he cite evidence that the driver decided to drive recklessly that day —after 27 years on the job—because he was paid by the mile. Nor does the book cite evidence that drivers paid by the mile are generally more reckless than those paid by the hour—who are, after all, often in a hurry to get home.
I happened to read this chapter while riding in the back of a metered taxicab on Interstate 95. The cabbie was paid by the mile, as are most cabbies. Does this make them reckless? Not that I've heard. Like truck drivers, they know that reckless driving can get them ticketed, arrested, smashed up, or even killed. And if we, as a society, want truckers to drive more slowly—which would increase the cost to consumers of moving cargo—the way to do it is to adopt and enforce lower speed limits.
Was it even "reckless" driving if he lost control while trying to avoid another accident? Posted by Orrin Judd at February 28, 2004 7:08 AM
Not to defend the indefensible, but the article mentions the truck jacknifed while trying to avoid rear-ending another car, suggesting the driver was following too closely, or was inattentive, etc...
The last time I heard though, rear-enders happen to people who aren't getting paid by the mile, also.
Posted by: Jeff Guinn at February 28, 2004 10:47 AMThe Dept. of Transportation would classify this as a "preventable" accident, for the reasons Jeff mentioned.
Most non-union trucking companies would fire the driver for jackknifing the rig anyhow, unless he had a very compelling story to tell.
Posted by: Michael Herdegen at February 28, 2004 11:36 AMJust the other day I heard Mr. Edwards complaining during the Democratic debate that all the textile mills have left his home state. "The jobs that put shoes on our feet, food on our table"...yada yada yada.
A bit ironic that he did his little part here to drive up the costs of running a textile operation in the United States.
Posted by: Jason Johnson at February 28, 2004 11:52 AMThese lawsuits are geared toward shifting the blame to the parties with the deepest pockets, no matter how tenuous or contorted the connection is. By making big business responsible for every tragedy, we are both undermining individual accountability in society, and sending the dangerous message that every tragedy must result in a monetary payout. As much as I feel for the families of the victims of 9/11, I think that the compensation fund for them was the wrong thing to do. We all must face the fact that life is tragic, and not expect monetary compensation for our grief.
Posted by: Robert Duquette at February 28, 2004 11:59 AMThen again, most people don't understand that the reason a truck may have such a large gap between it and the car in front is because of its longer stopping distance. I've seen cars cut into this gap, then suddenly slow down forcing evasive action behind them. Not all rear-end collisions are due to inattention.
There was an article about the Werewolf in the NYTimes a couple of weeks ago.
Referring to an hour-by-hour record of a fetal heartbeat monitor, Mr. Edwards told the jury: "She said at 3, `I'm fine.' She said at 4, `I'm having a little trouble, but I'm doing O.K.' Five, she said, `I'm having problems.' At 5:30, she said, `I need out.' "
But the obstetrician, he argued in an artful blend of science and passion, failed to heed the call. By waiting 90 more minutes to perform a breech delivery, rather than immediately performing a Caesarean section, Mr. Edwards said, the doctor permanently damaged the girl's brain.
"She speaks to you through me," the lawyer went on in his closing argument. "And I have to tell you right now — I didn't plan to talk about this — right now I feel her. I feel her presence. She's inside me, and she's talking to you."
As a lawyer, I am appalled that the Judge allowed that kind of "argument" in a trial. The Judge did grant a remittiture, but he should have declared a mistrial and sanctioned Edwards.
Furthermore, the case is based on bad science. From the same article:
Posted by: Robert Schwartz at February 28, 2004 3:51 PMThen a series of randomized trials challenged the notion that faster delivery could prevent cerebral palsy. Reviewing data from nine countries, two researchers reported last year that the rate of the disorder had remained stable despite a fivefold increase in Caesarean deliveries.
Dr. Karin B. Nelson, a child neurologist with the National Institutes of Health, says the notion that paying greater heed to electronic monitoring will prevent brain injuries remains just that, a notion. "Evidence of high medical quality contradicts the assumption that the use of electronic fetal monitoring during labor can prevent brain damage," Dr. Nelson said.
Robert--
Are you sure you live in the Twin Cities? Certainly not in my neighborhood...and guess which one THAT is...
Posted by: Brian (MN) at February 29, 2004 11:15 AMI mean Robert Duquette here, of course.
Posted by: Brian (MN) at February 29, 2004 11:17 AM