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When Mary Alexander, president of the Association of Trial Lawyers of America, took the microphone at ATLA’s midyear convention in Maui, Hawaii, the first words out of her mouth were: “We are at war.” She wasn’t talking about Iraq or terrorism, even though she spoke immediately after her audience watched video clips from President Bush’s State of the Union address. She was talking about tort reform. Though you couldn’t tell it from the official conference schedule, tort reform — particularly the capping of noneconomic damages — was the No. 1 topic here last week. Only one hour was officially devoted to the subject, a crowded plenary session on Sunday at 7 a.m. But again and again it surfaced at seminars, receptions and informal gatherings during the five-day conference. Not even the picture-postcard setting in Maui could assuage the anxiety of the 1,100 members in attendance. T-SHIRTS AND ANGER The very first speaker set the tone. Les Weisbrod of Dallas’ Morgan & Weisbrod, whose expertise is in medical negligence, was first up when the conference began. Before he said a word, the moderator asked him to turn around to let the audience read what was stitched on his shirt: “Shaken but Undeterred.” Then he railed against “tort deform.” When Boston lawyer Douglas Sheff moderated a series of sessions on pharmaceutical litigation a couple of days later, he asked each of the nine speakers to incorporate a few words about tort reform into their presentations, which they did. “We all have to get involved,” said Sheff of the Sheff Law Offices. “These seminars may become moot if we don’t act now.” Sharon Arkin of Newport Beach, Calif.’s Robinson, Calcagnie & Robinson later amplified. A broadly written reform bill (H.R. 4600) that passed in the House of Representatives last year and was re-introduced as H.R. 5 last week applies not only to suits naming doctors, Arkin said, but to those against nursing homes, medical devices and pharmaceuticals. At an evening reception co-hosted by ATLA’s Minority Caucus, its chairman, Herald J.A. Alexander of the Alexander Law Firm in Atlanta, compared the challenge of tort reform to the struggle of the early civil rights movement. Frederick Sherman of Deming, N.M.’s Sherman & Sherman drew laughs when he suggested that lawyers could learn a good deal more about prospective jurors if they learned to analyze not only the content of juror questionnaires but the handwriting. He proceeded to analyze the signatures of several well-known individuals, beginning with the president, whom he called “King George.” He found characteristics suggesting “courage” and “daring” before another led him to conclude: “This guy is heartless.” For the most part, however, attendees found the issue no cause for merriment. Everyone interviewed characterized it as a crisis for the profession. “President Bush has laid the gauntlet down,” ATLA President Alexander of San Francisco’s Mary Alexander & Associates said in an interview three days after her early-morning speech. Tort reform has been on the president’s wish list for some time, of course, going back to his days as governor of Texas. His State of the Union address seemed to propel it to the forefront, Alexander said. “No one has ever been healed by a frivolous lawsuit,” Bush declared in one excerpt played before Alexander’s speech. “I urge Congress to pass medical liability reform.” If he gets his way and Congress imposes a national $250,000 cap on noneconomic damages for lawsuits in this area, Alexander predicted, it won’t solve the problem of surging malpractice premiums that have led doctors to stage walkouts and slowdowns in New Jersey, Florida, Mississippi, West Virginia and Nevada in recent months. INSURANCE RATES Alexander cited the experience of her own state, California. When it adopted a $250,000 cap in 1975, insurance rates didn’t drop, she said. They continued to soar until the state regulated its insurance industry. Rates declined only after insurance companies were no longer exempt from antitrust laws, as they are in other states. And that, she said, is the problem. Tort reform, she continued, is “a misdiagnosis. We see this every 10 to 12 years.” When insurance companies lose money in the stock market, they raise doctors’ rates, she said, adding that the same thing happened in the mid-1970s and mid-1980s. “What we need,” she said, “is insurance reform.” Weisbrod, the Dallas lawyer, who is also on ATLA’s executive committee, wondered where it might end. “If they can pass these caps, what’s to stop them from going to every other tort and capping that?” he asked. THE COST OF EXPERTS What makes the cap so constricting, he said, is that the cost of litigating a medical-negligence case escalates quickly. Much of the expense is attributable to experts, he said. He often requires the testimony of three: one on causation, one on damages and another on negligence. If the defense puts on an expert in yet another specialty, he has to hire his own to respond. What he finds more troubling, Weisbrod said, is the disproportionate effect the cap would have on accident victims. People who were working can recover lost wages. Children, stay-at-home mothers and the elderly cannot. If they can’t recover for noneconomic damages like pain and suffering, he asked, what compensation is left for them? Robert Brenna, who practices in Rochester, N.Y., in the Law Offices of Brenna & Brenna, tried to be philosophical. He acknowledged that some plaintiffs’ lawyers are greedy and give them all a bad name. But he didn’t think that was an indictment of the system. Still, he said, “if the people in this democracy chose for us not to have the civil justice system that we have, then I would accept that. But I don’t think they’re getting both sides of the story. There are so many distortions.” Part of the problem, according to Gregory Cusimano of Cusimano, Keener, Roberts, Kimberley & Miles in Gadsden, Ala., is the public’s misperception of how the system works. Cusimano recounted a conversation from the previous week. At the suggestion of an insurance agent, a man contacted him about his daughter’s car accident. She’d been injured in a head-on collision with an 18-wheeler, and he wanted to know if the lawyer could help. Possibly, Cusimano said. But first he needed to know more about the accident. What did the driver do wrong? The father hesitated. Well, nothing, actually. She’d been driving on the wrong side of the road. To combat such misconceptions, ATLA’s leaders said, the organization will mount a public education campaign. The best way to get out their message, they added, is through their own clients. “We will never have the financial resources of the insurance industry or the corporate community,” said Ed Lazarus, ATLA’s senior director of state affairs. “What we do have is the voices of real people, and we need to help them understand the importance of having their voices heard.” He mentioned the case of Linda McDougal, the Wisconsin woman who had a double mastectomy only to learn she’d received another woman’s test results and she’d never had cancer. McDougal has recently spoken against the cap, and Lazarus said he hopes ATLA members encourage their clients to speak out themselves. A table at the conference provided members with promotional materials that cast the debate as one of victims versus Big Business, juries versus politicians, people versus profits. A videotape with six short advertisements conveying the same messages was available for purchase. Speakers urged members to increase their contributions to the organization, and Lazarus said ATLA would pump more money into lobbying. It has already conducted extensive public polling. Although the association typically doesn’t run advertising campaigns, Lazarus said, it will make an exception to fight tort reform. “The other side is spending tens of millions of dollars,” he said. ” We can’t match that, but we’re going to try to spend what it takes to make sure that at critical moments people understand what’s going on.”

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