New PTLA President fights for consumers
Alan Feldman takes on efforts to limit right to sue

July 5, 1995
By Samuel B. Fineman

As newly installed President of the Philadelphia Trial Lawyers Association, Alan M. Feldman has set his sights on debunking the push toward "tort reform," calling current efforts a big-ticket media charade concocted by insurers and manufacturers to discredit the legal profession and those it serves.

"This past year has been difficult," admitted Feldman, "given the changes in the political tide fueling so-called tort reform. We're battling a perception over a reality, but it's a powerful one."

"We need study after study showing that the rate of lawsuit filings have been stable for four years. Malpractice cases are in fact declining, yet the Doles and Gingriches talk about a litigation explosion. Once said, these ideas enter into the marketplace, and people take them for granted," said Feldman, lashing back at the contract with America with some fireworks of his own.

And since the measure of every past PTLA president's success has been the ability to derail legislation that would restrict an injured consumer's right to sue, Feldman said the last thing he wants on his agenda would be to go down as the "Aaron Burr of PTLA."

In the February edition of PTLA's Verdict, Feldman wrote, "This headlong, almost frenzied rush to enact significant changes, without any real opportunity for debate and reflection on the 'reforms,' which will punish the individual exercise of legal rights, is wrong, shortsighted and dangerous." Nowhere is this misperception clearer than in the jury box, said Feldman, who was recently shocked by several jurors' post-verdict comments relating to the McDonald's 'hot coffee' verdict following a different unrelated case that he tried.

"Their perception of the case is that someone got millions for a frivolous claim. What they didn't know is that there were 700 total complaints and that the verdict was reduced," said Feldman.

Feldman's prime goal is to short-circuit this misperception, which, in his view, is motivated by a smart public relations campaign waged by business and insurance interests who simply "have more money than the victims and trial lawyers."

PROACTIVE ROLE

To suppress the looming specter of tort reform, Feldman plans to mount a counter-offensive based upon the truth. Currently, PTLA is examining a possible radio campaign to highlight the many good things trial lawyers have accomplished. Much of what is taken for granted - that the United States has some of the safest products and workplaces in the world - has not come about by accident, according to Feldman.

"We have conscientious, kind and compassionate business people because it's either in their economic self-interest to be so or when juries and legislatures force them," he said, adding that while the judicial system might be in need of some fine-tuning, society is still better off with the status quo.

"Product manufacturers with their allies in the House and Senate want radical changes for people who are injured. And at a time when these same manufacturers are declaring record profits and their CEOs are making big bucks with insurance widely available, you've got to step back and wonder what the problem is. Do we really need to change the law to insulate one group, the richest and most powerful defendants, more than anyone else?" Feldman asked.

In Feldman's view, punitive damages are cited over and over as a prime reason why tort reform is necessary. Yet the actual amount of punitive damages awarded is minuscule compared to aberrant estimates. "Punitives have been awarded 300 times in the last 30 years. Yet, if you listen to the media they're awarded every week. When you talk about limiting damages to twice compensatory, you're tying the amount of punitive award to the damages suffered by the plaintiff. This is not the role of punitive damages," explained Feldman.

Feldman illustrated his concern with a hypothetical. In New Jersey, if a teenager is killed by a drunk driver there is little to be gained in the way of compensatory damages, which, being generous, might come in around $25,000. The corresponding punitive cap would then equal $50,000. Yet in Pennsylvania, the same compensatory award could amount to $1 million, and thus, the corresponding punitive damages would be twice that.

As a result of this one-size-fits-all approach, damages can vary significantly depending on the underlying state laws, an outcome Feldman finds unjust.

PERCEIVED IMAGE PROBLEM

As for the image of the trial lawyer, Feldman said it's time for a grassroots public relations boost. "I think we've had a perception problem for years. President Bush referred to us as the "tassel-shoed set,' or something like that. I constantly read headlines in the Wall Street Journal and other publications making reference to ambulance chasing attorneys," said Feldman, noting the recent headline touting a defeat for "ambulance chasers" in a U.S. Supreme Court case which upheld a Florida law prohibiting accident solicitations for 30 days.

For Feldman, the image problem is undeserved and over-hyped, as many are ignorant as to the gains brought about by trial lawyers. "Professionally speaking, we meet with the courts regularly to fashion programs that facilitate the administration of justice. We comment and help develop rules to promote efficiency," he said.

Moreover, Feldman pledged an attack on the notion that lawyers intentionally stall cases to effect an expensive trial. "By and large 95 percent of all cases settle. And with the new Day Backward and Forward programs in place," said Feldman, who praised Philadelphia Trial Division Administrative Judge Bonavitacola for creating them, "we're entering a new phase as trials will come up in a year-and-a-half to two years; that's new in Philadelphia."

One way to enhance the public image of trial lawyers is to spread a message of cooperation with the help of both the defense bar and the courts. "I want to work more closely with the Philadelphia Association of Defense counsel and its director, Madeline M. Sherry, of who I'm a great admirer. I'd like to develop twin projects and work on matters of mutual interest. It's time to get away from this antagonism. And I want to d the same thing with the courts, with Judges (Sandra Mazer) Moss and Bonavitacola, to create creative and cooperative solutions. I want to get the message out to citizens that we are responsible professionals who perform a significant service. We are not the bad guys," Feldman said.

While denying that a "glut" of lawyers threatens to flood the marketplace, Feldman said that competition, especially among personal injury attorneys, is fierce at times. He sees a potential problem for the future, as thousands of lawyers coming out of law school will enter what is already a crowded market.

Yet that raises the delicate questions of how to rein-in the sheer numbers of novice attorneys entering the workforce. When asked whether tightening bar admission standards for the purpose of limiting practicing lawyers is a good idea, Feldman answered with a resounding no.

"I don't think the way to go about it is to entice people to undergo the great expense of law school and then tell them they can't be lawyers because they can't pass the bar," Feldman said.