Making a Living in the Midst of Tort Reform

Mark ChappellTrial Lawyer

NATIONAL TRENDS IN TORT REFORM

• ATRA• ALEC

ATRA's Agenda: Fair Laws, Fair Judges, Fair CourtsATRA supports an aggressive civil justice reform agenda that includes:

Health care liability reform Class action reform

Promotion of jury service Abolition of the rule of joint and several liability

Abolition of the collateral source rule Limits on punitive damages

Limits on noneconomic damages Production liability reform

Appeal bond reform Sound science in the courtroom

Stopping regulation through litigation

ALEC• Members of the Civil Justice Task Force have

been at the forefront of the efforts to restore fairness and predictability to the civil justice system. The Task Force has worked diligently to promote systematic fairness in the courts through bills to discourage frivolous lawsuits, to fairly balance judicial and legislative authority, and to treat defendants in a consistent manner. In the most recent legislative session, ALEC members have introduced over 100 bills based on ALEC’s legal reform model legislation.

LEGISLATION THROUGH REGULATION

*New proposed Federal Regulations by the Bush Administration would “preempt lawsuits that conflict with

federal standards.”WHERE :

National Highway Traffic Safety AdministrationFood and Drug Administration

Various Banking Agencies

NHTSA

• *Aug 19, 2005 NHTSA issued a long-awaited proposal to improve strength of vehicle roofs, which have been known to cave in during rollovers causing serious injury and death.

• Specifically, “it would preempt all conflicting State common law requirements, including rules of tort law.”

FDA

*FDA has taken a different approach by “intervening in cases brought by individuals against drug and medical-device manufacturers that involve differing interpretations of FDA rules.

OCC

*Office of the Comptroller of the Currency issued a broad rule in 2004 determining “that state law protecting consumers from abusive lenders was preempted by the National Bank Act.” It also eliminated the authority of state attorneys general to enforce state laws over national banks and their subsidiaries, such as mortgage companies.

OCC

*OCC filed suit in June against New York Attorney General Eliot Spitzer because he asked in April to review the records of a number of banks regarding interest rates on home mortgage loans.

SOUTH CAROLINA TRENDS

What Did They Do To Us in 2004?

JOINT AND SEVERAL LIABILITYCivil procedure, civil liability

SECTION    16.    Section 15-38-15 of the 1976 Code, as added by an act of 2005 bearing ratification no. 23, is amended

to read: "Section 15-38-15.    (A)(1)    In an action to recover damages resulting from personal injury, wrongful death, or damage to

property or to recover damages for economic loss or for noneconomic loss such as mental distress, loss of enjoyment,

pain, suffering, loss of reputation, or loss of companionship resulting from tortious conduct, if indivisible damages are determined to be proximately caused by more than one

defendant, joint and several liability does not apply to any defendant whose conduct is determined to be less than fifty

percent of the total fault for the indivisible damages as compared with the total of: (i) the fault of all the defendants; and

(ii) the fault (comparative negligence), if any, of plaintiff. A defendant whose conduct is determined to be less than fifty

percent of the total fault shall only be liable for that percentage of the indivisible damages determined by the jury or trier of fact.

(B)    Apportionment of percentages of fault among defendants is to be determined as specified in subsection (C).

(C)    The jury, or the court if there is no jury, shall: (1)    specify the amount of damages;

(2)    determine the percentage of fault, if any, of plaintiff and the amount of recoverable damages under applicable rules concerning 'comparative negligence'; and

(3)    upon a motion by at least one defendant, where there is a verdict under items (1) and (2) above for damages against two or more defendants for the same indivisible

injury, death, or damage to property, specify in a separate verdict under the procedures described at subitem (b) below the percentage of liability that proximately caused the

indivisible injury, death, damage to property, or economic loss from tortious conduct, as determined by item (1) above, that is attributable to each defendant whose actions are a proximate cause of the indivisible injury, death, or damage to property. In determining the percentage attributable to each defendant, any fault of the plaintiff, as determined

by item (2) above, will be included so that the total of the percentages of fault attributed to the plaintiff and to the defendants must be one hundred percent. In calculating the percentage of fault attributable to each defendant, inclusion of any percentage of fault

of the plaintiff (as determined in item (2) above) shall not reduce the amount of plaintiff's recoverable damages (as determined under item (2) above).

(a)    For this purpose, the court may determine that two or more persons are to be treated as a single party. Such treatment must be used where two or more defendants

acted in concert or

VENUE

With regards to corporations, the legislation establishes criteria for determining a principal place of business; in considering the proper place for venue, the bill provides that owning property and transacting business in a county is insufficient in and of itself to establish the principal place of business for a corporation.

CAPS

• NONECONOMIC DAMAGES

WISH LIST 2005

WORKERS COMPENSATION LEGISLATION

TORT LEGISLATION??

WORKERS COMPENSATION “REFORM” LEGISLATION

• Eliminates the W/C Commission• Department of Insurance In Charge• ALJ’s handle hearings• AMA Guidelines as Bible• No recovery for failure to use safety equip• No rights to Undocumented workers• Second Injury Fund

TORT LEGISLATION???• Teacher Protection Act• Elimination of Double Recovery Act

TORT REFORM-

SHUT UP AND DO SOMETHING ABOUT IT!

NOT A DEMOCRATIC OR REPUBLICAN ISSUE

IT’S ABOUT JUSTICE

• Bipartisan equals success• Pendulum always swings• Justice, Justice, Justice• At what cost justice, at all cost justice

POLITICAL INVOLVEMENT• We took the Money• It’s a matter of survival• Get onboard the train before it leaves the

station

FRAMING THE DEBATE• Truth does not always prevail• Sworn to uphold truth vs. Sworn to Win at

all cost

The Truth About the McDonalds Coffee Case

• Perhaps the most well-known "frivolous lawsuit" is the story of Stella Liebeck - the woman who was burned by hot coffee from McDonalds. Here are the facts about the McDonald's lawsuit; decide for yourself if the suit was frivolous:

One more time• 1: Stella Liebeck was a 79-year-old grandmother who was the

passenger in her grandson's car. • 2: McDonalds served the coffee at roughly 190 degrees. 190

Degree liquid will cause third-degree burns within 2-7 seconds of contact with the skin.

• 3: Stella was wearing cotton jogging pants, and the 190 degree liquid soaked into the pants. She received third-degree burns to her thighs and genitals.

• 4: McDonalds admitted that the coffee was not fit for human consumption at the temperature they served it.

• 5: Over 700 men, women, and children had been burned prior to Stella's lawsuit.

• 6: Stella offered to settle with McDonalds just for her medical bills. They refused.

“Every man is entitled to his own opinion, but no man is entitled to

his own facts.”

President Ronald Reagan

SOUNDBITES---MISNOMER OF BILLS

• Economic Development, Citizens, & Small Business Protection Act.

• Jury Patriotism Act• Non-Economic Damages Award Act• Assumption of Risk Act• Commonsense Consumption Act• Intrastate Forum Shopping Abuse Act• Legal Consumer’s Bill of Rights Act• Private Attorney Retention Sunshine Act• Quality Education and Teacher and Principal Protection Act• Truth in Damages Act• Volunteer Immunity and Charitable Organizational Liability Limit

Education is the Opium of the Idiots

“Candidates should always speak and communicate to

voters on or below a 7th grade education level.”

Leadership Institute Candidate Development School

WHO WOULD YOU CHOOSE TO REPRESENT YOUR CHILDREN?

• Lobbyists?• Committees?• Boards?• Legislators?

Lobbyists

• Whose Bread I eat his song I sing!

Committees

• “To get something done a committee should consist of no more than three people, two of whom are absent”Robert Copeland

A camel was a horse designed by a committee

Boards

• Boards tend to maintain the status quo rather than strive to be the best they can be.

• Its easier to keep doing the same things the same way rather than risk doing something new and differently.

• Boards do not welcome differing points of view• Boards are pre-occupied with process• Boards and Lead staff don’t work well together.

Legislators“For eighteen hundred years, though perchance I have no

right to say it, the New Testament has been written; yet where is the legislator who has wisdom and practical talent enough to avail himself of the light which it sheds on the science of legislation?”

Henry David Thoreau

Bottom Line: Loyalty to the blood that drives the system and focus on reelection. Exceptions are rare, few, and far between.

You are the Captain of your own destiny – Make your own closing

argument

PROACTIVE STEPS-

LEAD

FOLLOW

OR GET OUT OF THE WAY!

“You can get much farther with a kind word and a gun than you can with a kind word alone”

AL CAPONE

POSITIVE LEGISLATION• Putting the aggressors on defense• Introducing more pro-friendly plaintiff

legislation• Turning legislative bills on their head

(Strike/Insert Tactic)• Who is really making the money?

COALITION BUILDING• The enemy of my enemy is my friend• Insurance Corporation as the Dark Sith

Lord• Joint Ventures

COALITION DESTRUCTION• Aim for the heart & cut the jugular• Best defense is a great offense

TAKING THE FIGHT TO THE PEOPLE

• Accentuating the positive• Jury Trials• Infomercials• Client Newsletters• Mass mailings

HAVE YOU HUGGED YOUR LEGISLATOR TODAY?

• Constituent focused• Relationship building• No reason at all vs. • Just when you need something• Hire them as a law clerk

Living Rich and Dying Poor

Keeping What you Make

• My Wife-Willingly overpaid

My Kids can do better than that, well maybe not!!!

Who owns that copier anyway?

Pension and Profit Sharing – Maxing out

401 K

Why can’t I drive a VIPER?

IRS Pub. 535

Why yes I do work from home!

• IRS Section 208A and Pub 587• Road Runner• Computer• Furniture• Phone Lines• Rent• Art

I’ve often wondered how they do it“DOWN UNDER”

• Treasury Reg. 1.162-5 and IRS 162(a)(2)• CLE’s around the world• 529 plans – 7%

“It’s Cash-Flow Stupid”

Getting off the Merry-go-round”

• 401 K Income producing real estate• 1031 Exchanges

Renting your own building

Be careful of self-dealing rules

How to Market your practice and Pay for your beach house

Leveraging your income

I like the structure of that!

IRS Sec. 104 (a) (1) and (2)

Work Hard Do Good Deeds

Defend the ConstitutionProtect Libertyand Live Well

My Heroes have always been

TRIAL LAWYERS

Fighting for Independence

Trial Lawyer

Defender of British soldiers in the Boston Massacre

6 of 8 acquitted

If we do not lay out ourselves in the service of mankind whom should

we serve?

John Adams

Trial Lawyer

Trial Lawyer

Those who stand for nothing fall for anything.

“Nobody expects to trust his body overmuch after the age of fifty”

Established the first National Debt

Not a very Good Dueler

Alexander Hamilton

Trial Lawyer

Thomas Jefferson

Trial Lawyer

“The essential principals of our government . . . . . . should we

wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to

peace, liberty and safety."

President Thomas Jefferson --1st Inaugural Address, 1801.

Let us not forget

Franklin Pierce

Franklin Roosevelt

Fighting for Unity

Abraham Lincoln

Trial Lawyer

Fighting for Freedom of Expression

William Jennings Bryan

Trial Lawyer

The humblest citizen in all the land,when clad in the armor of a

righteous cause, is stronger than all the hosts of error. I come to you in defense of a cause as holy as the

cause of liberty - the cause of humanity.

William Jennings Bryan

Clarence Darrow

Trial Lawyer

As long as the world shall last there will be wrongs, and if no man objected and no man rebelled, those wrongs would last forever.

Clarence Darrow

I have never killed a man, but I have read many obituaries with great pleasure.

Clarence Darrow

Fighting for Equality

Thurgood Marshall

Trial Lawyer

“We make movies about Malcolm X, we get a holiday to honor Dr.

Martin Luther King, but every day we live with the legacy of Justice

Thurgood Marshall”

Matthew Perry

Trial Lawyer

“My mother first took me to watch Matthew Perry as an NAACP

attorney in a Sumter courtroom when I was a young boy to show me what I could be when I grew

up.”

Congressman Jim Clyburn

Fighting for Safety

Ralph Nader

Trial Lawyer

Product liability suits are a pillar of democracy.

Ralph Nader

Ron Motley

Trial Lawyer

Fighting Corporate Greed

Eliot Spitzer

Trial Lawyer

Who will Fight the Next Fight

???????????

Trial Lawyer

Trial Lawyer

Defended Aaron Burr –treason

Defended Slaves

Was negotiating the release of Prisoners when captured

Oh, say can you see, by dawn’s early light, what so proudly we

hailed at the twilight’s last gleaming…

O say, does that Star-Spangled Banner yet wave o’er the land of

the free and the home of the brave?

Trial Lawyer

Frances Scott Key

“It is not the critic who counts, not the man who points out how the strong man stumbled, or where

the doer of deeds could have done them better. The credit belongs to the man who is actually in

the arena; whose face is marred by dust and sweat and blood; who strives valiantly; who errs

and comes short again and again; who knows the great enthusiasms, the great devotions, and

spends himself in a worthy cause; who, at the best, knows in the end the triumph of high

achievement; and who, at worst, if he fails, at least fails while daring greatly, so that his place shall

never be with those cold and timid souls who know neither victory nor defeat.”

~ Teddy Roosevelt

Mark Chappell

Trial Lawyer