Friday, December 12, 2003

Numerators & Denominators: Ted Frank Responds

In answer to our post of even date herewith entitled "Numerators and Denominators," Ted Frank sends the following response:

"I would dispute that I invert my style of reasoning; I've been critical of the argument by anecdote elsewhere in the tort reform context:

"I've long been an opponent of public policy by anecdote, and I view civil tort reform no differently. Anecdotes have entertainment value; anecdotes can be used to illustrate larger principles; anecdotes provide an accessible means for a layperson -- or a reporter -- to understand a complex topic. And while blogging is a form of writing that lends itself to anecdote (and the purpose of the overlawyered blog in particular is to collect media and web coverage of tort reform issues, which in turn lends itself to blogging about anecdotes), you'll note that I often try to make larger policy points about problems in the tort system to turn the anecdotes into illustrations. It's one thing to say 'Federal Rule of Civil Procedure 23 is currently structured in such a fashion that trial lawyers have an incentive to attempt to extort large sums from corporations regardless of the effect on consumer welfare'; it's another to point out the Blockbuster or Bank of Boston class action settlements.

"Unfortunately (or perhaps fortunately), I have very little say with how a Newsweek or a John Stossel presents the issue (I certainly winced at favorable reports on NBC and ABC, but I wince at most television news), but I'm confident that when it comes to media portrayals of tort litigation, the plaintiffs' bar comes out ahead. It's just not dramatically interesting when rigorous research and writing and litigating results in a corporation saving tens of millions of dollars that a trial lawyer was unfairly attempting to extract; that movie isn't going to get made as opposed to a David vs. Goliath story with an identifiable protagonist, and television news programs prefer similar story arcs. The stunning shift in the public perception of the Stella Liebeck case over the last ten years is, I think, illustrative.

"Unless I am sloppy (and blogging is conducive to sloppiness as well as to anecdotes), you will not catch me saying 'Because Stella Liebeck can recover, there is something wrong with the tort system.' The Liebeck case is neither necessary nor sufficient to come to that conclusion. I will say, however, 'There are problems with the tort system, and the Stella Liebeck case illustrates some of those problems' or 'The Liebeck result was incorrect for the following X reasons.'

"Incidentally, I would disagree that 'the goal for the tort system' (emphasis added) should be zero bad outcomes. I would strongly suspect that a tort system achieves 100% perfection is devoting too much in the way of societal resources to avoiding mistakes. That's not to say that avoiding bad outcomes should not be a goal for the tort system. But at some point there is a cost-benefit tradeoff where it would be better for society to have a bad outcome in some small fraction of cases than to divert more engineers and doctors away from other productive activities to the litigation process to ensure perfection. Or perhaps it would be better to say that one needs to take a more holistic view of what is a bad outcome.

"In other words, I'm perfectly aware that some bad results are endemic to having any sort of tort system, and that any tort system will produce its share of horror story anecdotes. But I also think a natural public policy response to this reality is to structure the tort system in such a way that individual bad results by individual judges or individual juries have less of a chance to have consequences far beyond the facts of the individual case. As I said elsewhere in response to one of your posts, 'Courts make mistakes, and the more issues that come within the judicial system's ambit, the more mistakes that will be made. Cf. Frank H. Easterbrook, "The Limits of Antitrust," 63 Tex. L. Rev. 1 (1984).'"
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.