Thinking Caps

Sometimes, we say things without thinking the statement through. For example, once my wife asked me that annoying and baited question, "Does this make me look fat?" Surely, somebody with as much education and training in "quick thinking" as myself wouldn't answer this question incorrectly. "A little bit," was my response. I'm still not sure why I said it, but I am quite sure I didn't fully think my response through before uttering it. I didn't think about the silence, the icy stare, and how uncomfortable the couch can be to sleep on.

I once had a client who testified, "I don't remember" in a deposition. The answer to the follow up question was, "I don't know." These are not inappropriate responses in a deposition. However, they are perplexing responses when the two questions being asked are, "How old are you?" and "What is your birth date?" The client was nervous, and unfortunately he didn't think his answers through. And again, I really can't make this stuff up.

Currently, a battle is being waged in the North Carolina General Assembly. Citizens, special interest groups, and many lawyers are fighting to replace North Carolina's doctrine of contributory negligence with the doctrine of comparative negligence. North Carolina is one of only four jurisdictions in the nation that still has this antiquated and harsh law. It essentially holds that if an individual is even slightly (as little as one-percent) at fault for their injuries then they may recover nothing as a matter of law. The vast majority of the country reduces the award by the amount of the injured individual's negligence assuming that contribution is not more than fifty percent. The insurance industry is strongly opposed to this fairer and more just law.

Across the State there have been many letters to the editor published concerning contributory v. comparative negligence. The op-ed pieces have been interesting, and the responses even more so. What I find interesting as well are the collateral matters that are being mentioned in these op-eds and editorial comments. In the Beaufort Observer's May 18, 2010 piece on the subject, the author closes his examination of the issue with a suggestion that we should "rein in the John Edwards awards to lawyers, both in personal injury and in medical malpractice."

This is nothing I haven't heard before. Citizens routinely bemoan the much publicized "excessive" personal injury awards given to individuals in courts across the country (of course, you rarely hear about the stories where laws like contributory negligence fail our citizens, which you can read about by clicking here). Caps on awards in personal injury and medical malpractice claims are routinely brought up in the Tort Reform debates that have taken place across this country for many years now, and a lot of individuals seem to support them.

I have to wonder, however, whether the people who advocate for caps on compensatory awards really think their statements through before making them. So, let's put our thinking caps on and explore a hypothetical:

An individual is driving down a two lane highway. A car approaches from the opposite direction, being driven by a person named Negligent Nancy. Nancy is driving above the speed limit and is talking on her phone. She drops her phone due to her greasy fingers from the fries she's eating on the go as well, and reaches over into the adjacent seat to retrieve it. In the process of doing so she crosses the center line and collides head-on into our individual. The cars mangle and tangle, and both drivers have to be pried out and airlifted to the local hospital.

Our individual spends over two weeks in the ICU suffering from shattered legs, a shattered pelvis, broken ribs, and various torn muscles and ligaments throughout their body. They have deep lacerations across their face and chest from the broken windshield glass flying in their face. After being discharged from the ICU, our individual spends another six months in the hospital and various rehabilitation facilities. Their medical bills top the $300,000.00 mark.

Our individual's bruises and fractures heal and the plastic surgeon tells them that the scars will one day fade "a little." What will not heal, however, is the damage to their spinal column. Our individual will never walk again. Our individual files suit against Negligent Nancy to recover for their medical bills and harms and losses.

Our individual and Negligent Nancy live in the State of Injustice. Injustice places a cap on compensatory damages of $100,000.00 over the medical bills. This is what the jury awards our individual, the full medical bills and the full amount they are allowed to award by law for pain and suffering.

You may say, "So what? No amount of money will ever make our individual walk again and I'd be pretty content with a $100,000.00 in the bank." You would be correct. You may also say, "I think that's more than fair." On this point, you would be incorrect.

Money will never allow our individual to walk again, but it can help them make up for what they have lost. It can help them buy a motorized wheel chair so they have easier and greater mobility. It can help them remodel their home so that it can be handicapped accessible; replacing the bath tub, toilet, installing a lift for the stairs, and installing a ramp, just among a few of the necessary renovations. It can help them buy a handicapable vehicle so they can drive and live independently. It can help ease the emotional pain that will come with never being whole again. With the social stigma and pity from strangers that they will experience for the rest of their lives. The hurt that will come when small children stare, cry out of fear, or run away from them. The hurt that will occur when their friends and family walk the other direction when they roll down the street because they're too afraid that our individual will ask them for yet more help. The hurt that will occur when their spouse leaves them because the new stress and life adjustments are just too much to bear.

You may be still asking the questions from above the last paragraph, but I hope you have the curiosity to ask another: "Who is 'our individual?'" They're your mother, father, brother, sister, son, and daughter. They're your best friend. They're your neighbor. They're your favorite coworker. They're you.

Is $100,000.00 still enough when you sit in Our Individual's wheelchair? The world is full of Negligent Nancys, and it truly could happen to you and your loved ones.

It's easy to throw arbitrary proposals out into the public forum when we don't have to live in the shoes of the serious injury victim. It's even easier when we allow ourselves to forget that what these cases are truly about is a fellow human being who has been affected for the rest of their time on this earth. It's easy to play Monday Morning Quarterback.

The jury is the cornerstone of our judicial system. Those 12 jurors are people selected from the community at random who hear the testimony, examine the evidence, and are instructed on the law by the judge. They are the 12 people who deliberate, debate, and argue all the facts of the case. They are the ones in the best position to think justice through before speaking their verdict. Let's think that through and stop playing Monday Morning Quarterback.

Disclaimer: The views of the author are his own. Nothing in this post is intended to convey any specific legal advice upon any specific individual. The author's wife is not fat. Not even a little. The author, however, has horrible dietary and exercise habits so he is not sure the same can be said of him. The author is not aware of any actual proposed legislation impleting a damages cap in North Carolina, with the exception of the cap on punitive damages currently in effect. $100,000.00 is an arbitrary amount tossed out by the author. The author may have stepped on the soapbox a little during this post. You have a right to disagree with him. The author's wife has pointed out that this post is a little more serious than the author's normal witty banter. That can occasionally happen, as pointed out by the author's dear college friend Katelyn who once compared the author to Will Ferrell in this scene from Old School:



If this comparison concerns you, you should know that the author is deeply professional in his career and role as a lawyer. However, the author does routinely remind people that life is just too short to take too serioulsy outside of the workplace.