Market Price

Josh Fogelman: Hey, Aaron.

Aaron Von Flatern: Are you going to do that again?

JF: I mean, it’s just such a good idea.

AF: I say, “Hey, Josh,” and then you say, “Hey, Aaron.”

JF: Hey, Aaron. You said, Hey, Josh.

AF: That’s true. Hey, Josh.

JF: Oh, hey, Aaron. Hey…

AF: What do you got?

JF: Hey, do you know what the most expensive painting ever sold at auction is?

AF: I absolutely don’t know. But if… I would like to guess that Van Gogh is involved. But that’s just a guess.

JF: I don’t think Van Gogh was involved. I’m not certain that what I’m about to say is true. And it doesn’t really matter, I think…

AF: Just facts.

JF: It’s just a podcast. I think, where people are listening and trusting us, whatever.

AF: Sure. And we’re just lawyers.

JF: Just a couple of lawyers sitting here talking about art. I think it was a Da Vinci painting of maybe questionable authenticity that sold at auction within the last few years for about $400 million. Okay? So why and how is that relevant to the practice of personal injury law?

AF: Easy. I was an economics major in college.

JF: Okay. Yes, I knew that.

AF: All right, so you’re talking about a market.

JF: Yeah, I am.

AF: You’re talking about a market for something that is generally viewed as difficult to price.

JF: That’s right.

AF: And yet we have a price.

JF: And yet we have found a way to establish a price, what a willing buyer is willing to pay, and what a willing seller is willing to sell it for.

AF: Right. Now, I assume you’re going to talk about how a good advocate would use that as an analogy for how a jury might put a price on something priceless, such as catastrophic injury, a limb, or even a human life. Is that where you’re going with this?

JF: Yeah. It’s like you can read my mind. So a big part of what we do as injury and wrongful death attorneys is we have to help a jury figure out how much money would fairly inadequately compensate a person who has either been permanently injured or who has lost a loved one as a result of the carelessness of somebody else. There’s some aspect of that job that’s easier than other aspects of that job. For example, it can be fairly easy to calculate a person’s medical expenses. You can compensate them by paying their medical bills.

AF: Black and white.

JF: It can be pretty black and white. There is this other aspect of the job that can be extraordinarily difficult, which deals with compensating a person for changes in their quality of life, things that I personally value really, really highly. And when we find ourselves in trial, fortunately, we have this incredible jury trial system where members of our community are empowered to be able to answer those questions of what’s a fair value for a loss that a person has sustained.

JF: But oftentimes, those jurors rely on us to help guide them about how to answer those questions in any given case. And for a long time in Texas, we had some different ways of being able to do that. There’s kind of a concept in the law called anchoring, where, as part of arguing to the jury, we could identify things like the price that society has agreed is fair to pay for certain things, like Da Vinci painting or a fighter jet. These things that we agree hold tremendous value and help a jury understand that. Well, for example, in the loss of a human life, do we value as a society in America, in the United States, do we value as a society, a human life more than we value some of these material objects that we as a society have deemed hold objectively significant value?

JF: And recently, and that’s been a really useful tool, because I think you put things in perspective in that way. And a jury is then empowered to really think philosophically about the decision that they’re about to make when they’re assigning a value to something so precious.

AF: Can I be the Texas Supreme Court in this discussion?

JF: Please don’t be.

AF: How dare you.

JF: How dare you?

AF: How dare you suggest a human life might be worth more than a jet fighter or a professional baseball player services or a piece of art?

JF: Yeah, how dare you?

AF: That’s what we got from a recent opinion in Texas Supreme Court, all due respect. It was a plurality opinion, which, for the listeners, all you need to know is that most of the opinions not binding on the lower courts due to the fact they didn’t have enough justices to support the propositions they were putting in their opinion, some of them were joined by a total of five justices. And so there were some opinions inside of the bigger opinion that were binding. And those are the ones that are kind of what we’re talking about, what they called unsubstantiated anchoring, which was a legal term that did not exist before this opinion. So in hundreds of years of Texas jurisprudence, the phrase had not been used before, it was tossed out in this opinion as if it were like an accepted legal term. It really wasn’t.

AF: But what it stood for was, you’re not allowed to reference other things. And what I find frustrating, if I sound frustrated, is that as you pointed out, trying to get the jury to get a handle on what a fair value might be for someone’s loss is already difficult, and now they’re totally out in space. They have nothing to compare it to other than, say, like the medical bills, for example. If someone dies instantly their medical bills are generally close to zero. And so using that as a reference point is kind of useless. Another way they might try to guess at it is, well, how much money did the family lose? And now if you’re using that as your anchor point, the poorer people are going to get paid less for their pain and suffering. And even the court in this case admitted that that’s an unacceptable outcome. Rich people should not be getting more for their pain and suffering than poor people. So we can’t use the lost wages as an anchor point for the pain and suffering or the harms and losses there. And so really where we’ve come full circle to is, well, what do we say? What do we use?

JF: How do we talk to a jury and help them if we’re handicapped in our ability to use tools to compare what society values certain material objects at, how do we help advocate juries to be empowered to truly send a message to wrongdoers that they should be held accountable for taking away something that is more precious? Anybody would argue, no rational person would say, yeah, I think a Van Gogh painting or a Da Vinci painting is more valuable than a human life. I think that we as a society accept that as a proposition. So how do we communicate that at the time when a jury’s job is most critical and empower them to be able to understand that approach philosophically when answering the question of value? I think that this case just came out fairly recently. So we have sort of, as a society of lawyers, spend a lot of time talking and thinking about what tools we might have available and how to approach that, but it certainly makes the job harder.

AF: Yeah, and I don’t want to sound like we’re whining about our jobs, because what I really lament here is the gutting of the jury’s power. If you are relying on the jury to be the last of, by and for the people government, the only government that without corruption, there’s no fake news. They’re sitting inside of a closed box listening to the facts of a case, sharing the documents. This is a government making decisions based on what’s really in front of them, there’s no argument about what the evidence is. It’s indexed, it’s in a binder. They’ve got the power to enforce the conscience of the community on these corporations, on these insurance companies, let them know what the standards are in our community. And why shouldn’t a jury be able to say that a person’s life is worth more than a jet fighter or a major league baseball contract? Why isn’t it okay for them to contemplate those kind of things as they’re asked to assign that number? And the answer is like, we just don’t trust you. We don’t trust the 7th Amendment’s wisdom of let things like this be decided by 12 citizens of the county, good and true.

JF: Yeah, that seems to be the message. And that’s kind of a tough pill to swallow, isn’t it?

AF: Yeah, and I don’t know that it’ll be a permanent situation. I think eventually there comes a point where you’re depriving people of their right to jury trial under the 7th Amendment that’s going to be challenged. But I also think that the way we’re going to get there is by pushing that envelope further. And eventually the Supreme Court’s going to react in a way that says, oh, you figured out a way around what we said last time, so we need to close that door too. And then we figure out another way around. And they say, okay, well, you figured out another way, so we’re going to close that door too. And then we’re going to look at all three of those closed doors and we’re going to say that as a body of work is a deprivation of the rights that these people have under the 7th Amendment. That’s going to go to the United States Supreme Court, and then hopefully we’ll get the right answer there. And if not, we might be facing the end of the jury trial as a really meaningful way to get companies regulated. We know that Congress, local governments are not great at regulating corporations that generally pay for lobbyists and get things the way they want them. Juries are great at it.

JF: That’s right.

AF: That’s the one thing corporations fear is the blank check in front of the jury.

JF: Yep, that’s right.

AF: They can write anything they want in there on any basis they want. And the Texas Supreme Court is saying, except not this basis. And they’re scratching one out and the next time they’ll scratch another one out and then they’ll scratch another one out and then we got some choices to make as a society.

JF: Yeah, it’s funny, I remember really early on in my career, I won’t go into detail about it, but I remember early on in my career I was involved in a case, it was an injury case, where a person’s child had been hurt, and that person was somewhat involved in the tort reform movement that ultimately resulted in things like capping of damages and medical malpractice, limiting what a person who was injured by the negligence of a doctor could recover, if they could even recover anything at all. A person had been involved in that movement and they had a kid who was hurt. And I remember having this discussion about some limitations that we had on their kid’s case. Burden of proof was high. It was really challenging case.

JF: And the father, the one who had been involved in that tort reform movement, was just appalled when some of the law that they had been involved in creating that handicapped plaintiffs and claimants now came home to impact their own family. And I think it’s kind of an interesting to think about is the folks who are involved in making these decisions that will have a lasting impact on the viability and integrity of the jury trial system when they find themselves in a situation where someone in their own family gets hurt and they’re having to have a discussion with a personal injury attorney who’s telling them, listen, your rights are now limited because of a decision that you helped make.

AF: And that decision, in part was based on sort of the inflamed context. I think the insurance company did a great job of pushing a narrative through the media and with lobbyists that there was a crisis at the courthouse that had to be resolved with some pretty draconian measures. And they cut a lot of families off at the knees and made it impossible to go forward on a lot of cases without some really expensive experts, some really byzantine notice requirements. It’s not just the caps. It’s like a gauntlet of legal challenges that face someone in a medical case.

AF: Now, that’s a little different than some of what we normally work on. But it is an example of how the public’s misplaced fear of a crisis at the courthouse can result in a lot of harm to the public. And this is very similar to the themes that happened, let’s say, after 9/11, when we were so afraid of terrorists that we started to change our own civil liberties and started to restrict ourselves in a way that harmed us. And maybe that was the right trade off. I’m not making a statement about… Like a political statement here about that. What I’m saying is we need to be really careful because it’s easy to sit on your couch and say, yeah, these insurance premiums are going up. They’re probably going up anyway.

JF: Sure, everything’s going up.

AF: Everything’s going up. Meanwhile, when the worst happens, why wouldn’t you trust a jury? Why wouldn’t you trust the 12 people who came in with no axe to grind, came in with no interest in the case, sat through days and days of testimony, looked at every document, every video, every photo, every medical record, every medical bill, got a feel for what was right and wrong. Why wouldn’t you trust those 12 people to do the right thing?

JF: Yeah, absolutely. I mean, we have a jury selection system. Both parties have the right to choose a fair and impartial jury. Both sides have the exact same rights when it comes time to questioning that jury and ensuring that the jury is fair and impartial. It’s just that sometimes things are uncovered throughout the course of a jury trial that give a jury a reason to send a punitive message, mostly to companies, sometimes individuals, and say, we will not tolerate this in our community. And when you strip them of that power, it’s generally not a good thing for safety in our community.

AF: And why not leave it to appeal? If you don’t trust those 12 people because you think they’re going to do something that’s wholly unreasonable, you got to understand there is a whole process designed to give some checks and balances and make sure that the jury is allowing the defendant due process and is keeping things in proportion. So taking the rights away before it even starts, I think, is an unfortunate result, predictable from the insurance company standpoint, who kind of waged this campaign.

JF: That’s right.

AF: I’ll get off my soapbox.

JF: Yeah, no. So what can people do about it? So you’ve got people who might be called upon to be… A juror if you’re hearing this, understand that your voice matters. Understand that the person advocating for an injured person might be handicapped in their ability to articulate their thoughts and really advocate and help educate and empower you on what power you hold in the pencil in that jury room. But also the pendulum politically, is always swinging back and forth. There’s always been this push and pull between insurance companies and the people that they’re paying to go lobby for them, for certain laws to be passed or certain judges to be elected, and people on the plaintiff’s side of the bar who are really pro the 7th Amendment, pro jury trials, pro empowerment of jurors, and believe that jurors truly do represent the conscience of the community and should be trusted with making decisions that impact safety in our community.

JF: I think a lot of people go to the polls and they vote for their legislators just along party lines without really understanding sometimes the consequences of what voting a particular legislator into office might mean for the things that really and truly might impact their family at some point, kind of giving some thought and concern to the fact that this is a legislature in our state that has the power and authority to change laws like we just basically saw the Texas Supreme Court enact on their own and reestablish power in the jury trial system, just kind of trying to be a thoughtful member of society. I think those are kind of some of the things that listeners can think about when they’re evaluating what choices to make at the polls.

AF: Well, I hope that this has been thought provoking for people that are out there wondering about how our Texas justice system works. And I would certainly encourage them all to send this podcast to Supreme Court and ask for their feedback. I’m sure they care a lot.

0:42:26.3 JF: Sure they do.