Letter: What Am I Doing Here?

Extra from Issue No. 11, Originally Published: 27 November 2002

In reviewing this week’s mailbag to decide which letters to use, I decided to run a very long one — and my even longer response to it. “Warning! It’s a major RandyRant(tm).”

I get lots and lots of mail telling me how “refreshing”, “wonderful”, “invigorating and thought-provoking” it is to read the common sense commentary in Stella Awards. Thank you; I truly appreciate your kind comments.

Certainly not all of my mail is complimentary. Oh no, not by far. “D.F.” in Pennsylvania wrote me a long missive titled “A Thumbs Down on the ‘Stella Awards’.” He originally wrote me after I announced TSA (but before the first issue!) to tell me how “concerned” he was about this new project. I replied that he needed to let the publication get up and running before he started criticizing it; that he can’t very well argue against something when he has no clue about its contents. (And yeah, I can hardly believe I made that argument — people do it every day!) So he waited 10 whole issues before striking out again, pulling out the very same arguments as he used before.

I have removed his pet lawsuit topic from his letter since I don’t care to give publicity to it in this way, and I trimmed his letter down to the meat of his arguments (he did rather drone, lecturing on several incredibly obvious topics). Please don’t write to ask me what his pet topic is; I will choose my own cases from the whole as I see fit, and to introduce different aspects of the broader issue as I find good cases to help illustrate them.

Complaint Filed

D.F. writes, “You have now published 10 issues, and many of my concerns have not been assuaged, so I will raise them again. In my original e-mail I asked ‘Are you going to cite cases [on the issue I care about]?’ In your first 10 issues, only three of the cases covered involve [such] suits. These are serious issues, but you’d rather cover disputes over plastic flamingoes.

“You say on your Web site you are not a front for any special interest group and that you are completely independent. But I don’t see how you can avoid being co-opted by the so-called tort reform movement. Issues such as limiting punitive damages, limiting access to the courts, and other restrictions on the right to file suit are hot political issues across the country. Proponents of tort reform must love your publication, especially since they can tout it as independent of their campaign. ‘Frivolous’ is a value judgment that depends on one’s point of view. Every lawsuit is considered frivolous by the person who is sued, and every legal theory is unfounded until some judge finds merit in it.

“It’s easy to advocate Draconian measures to limit suits based on one’s political philosophy or financial interest. But there’s no evidence that the courts are swamped with so-called frivolous suits, or that they lack the power to deal with them. Judges already have the authority to dismiss cases that have no basis in fact or in law, and defendants can file for summary judgment. Appeals courts serve as a check on juries and trial judges by reducing excessive awards and overturning unjustified verdicts.

“Every citizen has the right to be heard in the courts, even if it’s only to have his case thrown out the first time a judge looks at it. We don’t need to discourage people with legitimate claims from bringing suit because they face public ridicule from the media. The question of misuse of the judicial system is a complex one, with many issues to consider. It’s too important to be reduced to fodder for humor or used as a prod to misguided anger.”

Yeah, Right.

After a mere 10 issues “D.F.” is upset because “only” 15 percent of the cases presented touch upon his pet issue?! I’m surprised that many cases can be put into any particular classification. “Plastic flamingoes” is indeed a nice catchphrase — which is exactly why I used it. Isn’t it ridiculous to fight over some yard decorations? Well yes — that’s exactly the point! Is that kind of issue what our courts should be used for? Of course not. The entire case was about two grown men arguing like 5-year-old brats. It’s called “abusing the system,” and that’s what TSA is all about.

D.F. just can’t stand it that I’m independent, and manages to twist that into a negative. After all, I’m not on his side! If he really can’t see how I can’t “avoid” being “co-opted” by unspecified special interest groups, he’s a fool. But I hardly have to argue against his silly premise, since he puts the lie to his own opinion by complaining how he was not able to force me to bend my coverage to his issue. I mean, how idiotic is that? Since I can’t be pressured by him, that’s evidence that I’ll necessarily have to be “co-opted” by others? Did he even listen to his own argument?

Will some tort reform groups like TSA? Of course. And of course not — some will think it’s great, others will think it trivializes the issue whether it does or not. I do try to write in an entertaining way, even though I happen to think these are very serious issues, since that’s the only way a lot of people will read it. The readers laugh, sure — but they also seethe in anger over the many different ways clever lawyers and plaintiffs come up with to abuse the system.

The courts, like our legislators, represent all of us (you’ve heard of “The People vs.”?) The “people” are us; abuse of the courts is abuse of us all. And we the people are only just now starting to understand that the costs of lawsuits are being passed to us all. You don’t really think some entity called “Home Depot” is going to be out $24 million, do you? Of course not: they’ll make it up by increasing prices on the things we all buy. Maybe they have insurance? Cool! (Um… you don’t think some insurance company is just going to sweep a little gold out of their vault, do you? Of course not: they’ll make it up by increasing insurance premiums — do you think your insurance is fantastically cheap? I doubt it.)

Another Straw Man

D.F. points out how “easy” it is to advocate “Draconian measures” like limiting access to courts — as if I’ve been advocating any such thing. Rather, I’ve emphasized again and again and again that there is no easy solution. This isn’t something that 10 issues of an Internet publication will solve — or 100 issues. Or 1,000. Rather, it will take a lengthy and in-depth dialogue among informed citizens and reform-minded insiders to carefully weigh the pros and cons of various approaches, and then slowly and carefully introduce reforms. What’s “easy” is to laugh at a Winnebago driver putting the cruise control on so he can go into the back to make a cup of coffee, and suing over the resulting crash and winning a million dollars from a sympathetic jury from a big evil corporation.

So easy, in fact, that it’s a lie — it never happened. But people love sending that story around. The recipients get a laugh, say “ain’t it awful?” — and move on to the next joke. Not so with reading TSA cases: TSA gets deeper in, explores the issue in (yes!) interesting ways and from all sorts of different angles week after week, and explicitly points out that the solutions aren’t obvious. Such an approach stimulates thought and discussion on an important topic that affects all of us …just as it was designed to do.

D.F. seriously seems to think that people will be cowed from filing cases because they might be “ridiculed” in public by a guy publishing a newsletter to a mere 22,000* people spread out all over the world. I doubt it, but if so: GREAT! People should think twice before filing a suit. If the suit is not ridiculous (hello pink flamingoes!), it’s not exactly a target for ridicule, is it? If only the flamingoes were so easily shot down.

Disease Symptoms

D.F. argues “there’s no evidence that the courts are swamped with so-called frivolous suits.” Well, there’s enough “evidence” that I sure haven’t had a hard time coming up with interesting cases every single week, and I’m only pulling a maximum of two per week out of dozens that I find or readers suggest. And I haven’t even looked back very far; most are from current news stories! OverLawyered.com sure hasn’t had a hard time coming up with dozens of cases every week. And we’re far from the only voices in the rising din. Can anyone seriously argue that the problem isn’t increasing? And that it’s not just a problem in itself, but indeed a symptom of a much greater problem?

That problem would be, of course, an epidemic rise in the Victim Culture in the USA. Courts housed in the Victim Culture entertain cases from people who actually believe that McDonald’s “forced” them to eat 80 Big Macs per week for years on end, and that had McDonald’s merely Informed Them That Isn’t Exactly Healthy, Sir!, they wouldn’t have chowed down so many burgers, wouldn’t have grown to be 385 pounds, and wouldn’t be suffering from diabetes and heart disease. And dammit, that entitles that poor, poor victim to COMPENSATION! 80-bagillion dollars will Make Him Whole, Thank You!

Yeah, right. McDonald’s is in the business of selling a certain class of food to the people who want it. Love them or hate them, it’s your choice whether to eat there. And shouldn’t it be?

But according to the whining cry-baby logic of people who literally are pressing such a case, McDonald’s should have said “Hey, mister, yer kinda tubby — maybe you should lay off these megafatpills for awhile, like your doctor has been telling you to do for the last decade.” Yeah, right; they’d then sue because Big Bad McDonald’s was discriminating against them!

If I heat up a bowl of chili in my microwave and end up getting a steam burn when I take it out, who’s at fault? A) The microwave manufacturer. B) The bowl manufacturer. C) Hormel, because they didn’t put a warning on the can? The victim culture’s answer: D) All of the above. My answer: E) It’s my own damned fault because I’m either an idiot or I wasn’t paying attention while doing something dangerous (handling very hot food with my bare hands). And yes, it did hurt, but I have a brain and managed to learn from my mistake.

Does this make sense to you? If so, don’t just nod; pass the word. Show this site to a friend. Use it as a way to start a discussion. One week of TSA won’t solve this major, complicated issue; a series of TSAs, though — ah, what power that gives! Example after example. New ways of looking at what we’ve all been rolling our eyes over for years. Start the ball rolling by spreading the word. I don’t have the whole solution, but if enough of us cry “STOP!”, the politicians and courts will listen.

My 2020 Thoughts on the Letter

A few readers urged me not to “be upset” with such “unwarranted criticism” against TSA, or not to “waste the space” (or “effort”) to respond. I was certainly not upset or angry with D.F., and I hardly think the space, or my effort, was wasted. Not only do I think it’s good reading, I think it’s vitally important that we understand where some people are coming from in their steadfast support of the current system. And it gives you some examples of what to say when one of your misinformed friends argues, as D.F. did, that there is “no evidence that the courts are swamped with so-called frivolous suits.”

Indeed, the mail in support of my “rant” was crushing. I’ll include some of the most interesting in the next case posting.

Meanwhile (as if it needs to be said), TSA was never “co-opted” in any way by any special interest group. Hell, they didn’t even try: if they ever even thought about it (unlikely), they surely realized I wasn’t to be bought. What does it say about D.F. that made him so sure that it’s so easy to be “co-opted”? Maybe in this case, “D.F.” stands for Dumb F…ellow.

* By the end of newsletter publication, there were more than 96,000 subscribers.

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