You Need Judges With Guts, Insurers Told

By Susanne Sclafane

NU Online News Service, Jan. 16, 11:11 a.m. EST, New York?A Mississippi Supreme Court judge warned insurance executives that legislative reforms aimed at curbing tort costs won't work unless elected judges have the backbone to support them..[@@]

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

During a Tuesdaypanel discussion focusing on the civil and criminal justice systems at the Property/Casualty Joint Industry Forum in New York, Mississippi Supreme Court Judge Jess Dickinson argued that, to reverse a trend of spiraling jury awards, trial court judges would have to be willing to overrule irrational decisions by juries chosen from the electorate that put them in office.

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

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

All the panelists, including Queens, N.Y. District Attorney Richard Brown, criticized insurance companies for helping to maintain an environment of runaway tort costs and out-of-control no-fault systems by "feeding the wrongdoers" with settlement awards.

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

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

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

"How about passing rules before the conduct?" asked Judge Niemeyer. "If we're going to award pain-and-suffering and punitive damages, [let's devise rules] so that when you get a certain conduct, 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 that allows defendants to recover attorneys' fees when they win on summary judgment. "I've never seen a trial judge award attorneys' fees to a winner of a summary judgment. [And] in 20 years, I've never seen 50 cents paid out" by anyone who brought a frivolous lawsuit, he said, referring to another rule that would have the trial judge award damages to a party that must defend against a frivolous suit.

Judge Dickinson said that the tide is changing in Mississippi courts, where he defeated a judge reputed to be among the worst in the 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 to Mississippi courts.

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

Judge Dickinson said insurers and businesses should support the campaigns 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 paid for your kind of fairness," expecting the judge "to take care of you." The correct message to convey is that insurers and businesses support certain judges because they "just don't want a system that's upside down" and irrational.

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

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

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

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

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You Need Judges With Guts, Insurers Told

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