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Howry: Tort reform backers make foul assertion

March 28, 2006 | Articles, In The News, Randy Howry

By Randy Howry, President, Austin Bar Association
The Austin American-Statesman

In his March 21 op-ed piece, “Striking out lawsuit abuse”, Jay Miller, the president of the Round Rock Express baseball team, claims that many lawsuits are filed by spectators injured at ballparks every year resulting in large payouts by team owners. He maintains that baseball fans are looking for every opportunity to hit a grand slam jackpot at the expense of the team or even its players.

Those of us interested in addressing the myths of tort reform have one question, Where in the world are you being sued?

Although we apologize for striking out a good fantasy with the truth, a decent respect for the dignity of the rule of law requires that your readers know the following: A search of the district clerk’s records in Williamson County reflects that neither the Round Rock Express nor its owners have ever been sued for any reason, certainly not for spectator injury, in the five years the team has called Round Rock home. Not once. Ever.

But lets go further:  Try Googling for baseball-related lawsuits. You’ll get about a dozen across the country covering decades, almost all related to contract disputes or other business-related matters. Miller himself could only cite three examples from across the nation, years removed, and more importantly, he did not reveal outcomes. Most states even have laws that protect teams from lawsuits related to known consequences of attending sporting events.

So why would Miller profess such fear? Why insult his good and generous fans? The answer to that question is found in the small print at the very end of his op-ed piece. Miller is a member of the board of directors of Citizens Against Lawsuit Abuse of Central Texas.

Over the past few years, it has become real sport for organizations such as this to demonize lawyers and lawsuits. Blaming lawyers and lawsuits for all of society’s ills is fun and comfortable for folks, like Miller, who do not feel the need to research the facts. These so-called tort reformers are quick to throw out phrases such as, “Frivolous lawsuits are clogging the courthouse” or, “Out-of-control jurors award too much money”.

The truth is that over the past decade, there has been a 50 percent reduction in the number of non-family-law cases filed, and the monetary awards, reflected in jury verdicts, have steadily decreased during that same period. This downward trend began well before the tort reformers began their reforms.

No doubt, there are occasions when juries make bad decisions. Those are the ones you read about in newspapers and magazines. But it does not happen nearly as often as some would have you believe. And, the anti-lawsuit crowd never wants to discuss the checks and balances built into the legal system to protect against run-away jury verdicts: motions to sanction frivolous filings, the ability of trial judges to enter judgments regardless of jury verdicts and the right of appellate courts to review jury verdicts and overturn them and reduce jury awards if justified.

Miller writes, “. . . the game of baseball is played with bats and balls. The rules of the game have been in place for more than 100 years.” True, and it is the longevity of the game of baseball that makes it so special. And Miller knows that, for more than 100 years, the legal rule has been that being hit by a foul ball or home run in the ball park is expected and foreseeable and not the proper subject of a lawsuit.

Likewise, the jury system has been part of the American democratic process for more than 200 years. Properly constrained by rules of evidence and procedure, it has served us very well.

There never seems to be public outcry when ordinary citizens, who serve as jurors, are asked to determine whether a criminal defendant should live or die. But when asked to determine the culpability of a defendant in a civil case involving monetary damages, these same ordinary citizens are suddenly rendered incapable of making such a decision.

Can our system of justice be improved? Certainly, but there can be no dispute that lawyers and lawsuits have made significant contributions to society during that period. Dangerous products have been improved or eliminated, civil rights have been established, and polluters have been punished. Creating false impressions about frivolous lawsuits does every citizen a disservice.

So, Mr. Miller, with all due respect, don’t pitch that stuff unless you have all facts. With daily news reports about gambling by players and coaches, exorbitant players’ salaries and performance-enhancing drugs, its hard to believe that frivolous lawsuits are baseball’s biggest problem.

Howry is president of the Austin Bar Association.

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