You Need Judges With Guts, Insurers Told

By Susanne Sclafane

NU Online News Service, Jan. 16, 11:11 a.m. EST, NewYork?A Mississippi Supreme Court judge warned insuranceexecutives that legislative reforms aimed at curbing tort costswon't work unless elected judges have the backbone to supportthem..[@@]

For insurers, the more important news may have been that thespeaker, a newly-elected member of the bench, promised change in astate where they have been on the losing end of cases that led tohuge awards

During a Tuesdaypanel discussion focusing on the civil andcriminal justice systems at the Property/Casualty Joint IndustryForum in New York, Mississippi Supreme Court Judge Jess Dickinsonargued that, to reverse a trend of spiraling jury awards, trialcourt judges would have to be willing to overrule irrationaldecisions by juries chosen from the electorate that put them inoffice.

He referred to jury findings against out-of-state companiesdragged into litigation through abuses of the legal system.

U.S. Circuit Court of Appeals Judge Paul Niemeyer, who sits onthe Fourth Circuit panel (covering Maryland, Virginia, NorthCarolina, South Carolina and West Virginia), urged a system ofrational standards for jury awards.

All the panelists, including Queens, N.Y. District AttorneyRichard Brown, criticized insurance companies for helping tomaintain an environment of runaway tort costs and out-of-controlno-fault systems by "feeding the wrongdoers" with settlementawards.

"I don't have to explain" what it means to be aConnecticut-based defendant in Mississippi in a court "where allthe lawyers, judges and jurors are from Jefferson County," JudgeDickinson told insurer executives in attendance.

Beyond simply passing rules, "we've got to have a system wherejudges are willing to stand up in a courtroom of their voters?thepeople who put them in office?and say to them, I reject what youare saying in favor of someone who's not from here."

Unless you have judges on the trial court and appellate levelthat uphold and "jealously guard" ideals of integrity, fairness andcorrectness in the legal system,
there will continue to be abuses, he said.

"How about passing rules before the conduct?" asked JudgeNiemeyer. "If we're going to award pain-and-suffering and punitivedamages, [let's devise rules] so that when you get a certainconduct, you know what you pay for it."

"We pass rules all the time and then don't comply with them,"Judge Dickinson countered, referring to a rule in his state thatallows defendants to recover attorneys' fees when they win onsummary judgment. "I've never seen a trial judge award attorneys'fees to a winner of a summary judgment. [And] in 20 years, I'venever seen 50 cents paid out" by anyone who brought a frivolouslawsuit, he said, referring to another rule that would have thetrial judge award damages to a party that must defend against afrivolous suit.

Judge Dickinson said that the tide is changing in Mississippicourts, where he defeated a judge reputed to be among the worst inthe nation, according to various Mississippi press reports.

His installation ceremony drew a huge turnout, he said, because"people are optimistic" that a sense of fairness will return toMississippi courts.

District Attorney Brown, who said he has been both elected asstate Supreme Court judge and appointed to an appellate courtposition, said he couldn't say whether election or appointment wasthe best system. But putting independent judicial screeningcommittees in place to separate out the chaff from capable,talented judges would make sense, he said.

Judge Dickinson said insurers and businesses should support thecampaigns of judges that uphold an ideal of "fairness."

"Make sure that your motives are clear" when you do that,however, he said, noting that the media will report that "you paidfor your kind of fairness," expecting the judge "to take care ofyou." The correct message to convey is that insurers and businessessupport certain judges because they "just don't want a systemthat's upside down" and irrational.

During his presentation, Judge Niemeyer noted that when juriesaward irrational "bonuses" for pain and suffering and set"penalties" for punitive damages, they base them on a "sense offairness."

"Who's to say that's right or wrong," he said, questioning thefairness of a $100 million malpractice award to one individual.

"We now have ?regularized' pain-and-suffering and punitivedamages in cases that aren't egregious," with no clear rules to saythat any particular award is out of bounds, said Judge Niemeyer.Insurers and businesses have responded, he said, by regularizingsettlements so that they can try to circumscribe their risks andcounter the irrationally and unpredictability of the system.

Discussing class actions, Judge Niemeyer said insurers' policyof agreeing to settlements "feeds the monster."