I just saw HBO’s “Hot Coffee”.  It is a 90 minute in depth analysis of individual cases on how we have compromised the effectiveness of our legal system.

The lead story was about the elderly woman who was severely burned by the hot coffee she got from McDonald’s.  This case became the poster child for tort reform and frivolous lawsuits.  But like so much in the media the whole story was rarely told.

The burns were severe, third degree burns involving skin grafts. McDonald’s had settled over 700 similar cases. The original judgment of $2.4 million dollars was decided by calculating two days worth of sales of coffee and was reduced to $480,000 by the judge.  In other words when you got the whole story the judgment was not so unreasonable and it showed how well the jury system actually worked.

The subject of tort reform, judgment caps, and mandatory sentencing should be repugnant to our legal system. I have stood against legislation from the bench: the wide interpretation of the law to such an extent that the judges actually write laws that the legislature never intended.  But I also stand against legislatures adjudicating cases they have never heard.  This includes caps and mandatory sentencing.

There are cases that are poorly decided.  Our legal system is not perfect, but we must not let the perfect become the enemy of the good.  We should not prohibit good justice because it is occasionally misguided.  Like many laws and regulations these efforts too often create bigger problems than they solve.

Unable to get effective tort reform legislation proponents sought to accomplish the same in states where judges are elected by funding campaigns to elect sympathetic judges, and smearing others.  I would propose that judges be appointed, though not necessarily for life, and confirmed by legislative branches.

“Hot Coffee” shows the outcome of tort reform. A child is brain damaged at birth by clear malpractice but the jury’s $5.7 judgment that will clearly be needed to take care of the child is reduced to $1.2 million because of caps.  The family now gets Medicaid to take care of the child: taxpayers are bailing out the doctor.

The final segment is about a 19 year old female Halliburton employee who is roomed with numerous men in a military style barrack in Iraq. She complains about the arrangement and that she this was not what she was told her quarters would be like. She complained about harassment and was eventually drugged and gang raped.  She was unable to get a jury trial because of a forced arbitration clause in her employment agreement. Forced arbitration clauses are written, administered, and often biased towards the company over the consumer or the employee.  It was new to me that these clauses could circumvent clear criminal action and negligence.

Al Franken, to his credit, sponsored an amendment that this would not be allowed with military contractors, and after four years the victim is getting her day in court.

An Alabama judge summarized it best at the end of the show. “What we need is tort respect, not tort reform.”