By SCOTT GRABER
It is Wednesday, the day after our long-anticipated Election Day, and I’m sitting in my small library looking at a solid wall of law books. This afternoon a shaft of sunlight illuminates the gold banded spines of those case-heavy law books. But that visual effect does not give me the usual sense of continuity and constancy.
I must say this outcome — the lack of a clear winner (early on) in the Presidential race — was unexpected (for me). I had come to believe in Nate Silver’s national polling; not to mention the long lines of early-voting Beaufortonians waiting to cast their ballot. I had come to believe that we were on the edge of a new day — courtesy of Joe Biden.
But even though it appears we will be getting a Biden Administration (shackled to a Republican Senate) there is a clear divide in this country pitting the Democratic cities against a largely Republican countryside. This divide means the next iteration of governance will be restrained, contained and in conflict.
But for a week (or so before the election) I could dream about what Biden would do once in he got the Oval Office. What, I wondered, would he do right out of the gate?
Would he tackle income inequality, systemic racism or climate change? Each of these long-haul problems comes with a host of “stake-holders” who would, of course, resist. Each would involve new legislation, a host of executive orders, and demand campaign-style Presidential focus.
So where would Biden spend his so-called “political capital” first?
Many of my friends thought Obamacare and the refresh of that long, uneven, up and down program to insure “free” health care across all age groups would be first in line.
It is no secret that there are huge, well-funded industry groups who love the existing for-profit system. It is no secret that “Big Pharma” and the health insurance cosmos would link arms to fight “socialized medicine.”
In spite of massive resistance, I thought that this might be the moment in time when everything would be in alignment. This would be the moment when the Democrats had the Senate; and the House; and the chance to craft something that wouldn’t be invalidated by the Supreme Court.
And so I sat in this very room (several days ago) and pondered the unintended consequences of such a system. I looked at the law books in much the same way I’m looking at them now and wondered what would happen to lawyers — especially those who have a personal injury practice.
You know these fellows because you see their grim faces on every billboard between Beaufort and Savannah. You know them because they buy tons of television advertising where they claim to be a re-incarnated Rottweiler who can get you “the money that you deserve.”
Years ago there was some ethical question about this kind of advertising. But the courts said this speech is more or less protected by the First Amendment. Like campaign speech, there seem to be no guardrails when it comes to self-promotion and self-righteousness.
At any rate what happens when every medical bill is paid for by the government? What happens to the personal injury lawyers; and those that defend these claims when it is no longer possible for a lawyer tell a jury that the injured person must be completely re-paid for his or her medical expenses.
Many of you know that medical bills are not the only thing a litigant can recover at trial. He or she can also recover for the pain that they suffered as a consequence of the negligence of the defendant. But, for years, that has been a multiple of the amount of the actual medical bills. In other words, if a person has $25,000 in medical expenses, the attorney usually multiplies that by 3 (or 4) when making his “demand” for a complete settlement.
The measurement of pain and suffering is not based on any device or MRI that gives a scientific read-out. It is based entirely on the lawyer’s rhetoric and what the plaintiff says that she felt as she went through the windshield. Likewise, making the “pain award” a multiple of the actual medical bills is equally inexact. But it is this ominous, unknown multiplier that compels insurance companies settle up to 90 percent of lawsuits filed.
If one’s medical bills are paid by the government; and trials left with singular duty of awarding money for “pain,” “loss of enjoyment of life” and other impossible-to-measure imponderables, the whole legal process will change.
I’m not naive enough to say that jury trials will go away. But losing the measurable, and giving way to the subjective, would not be a good thing.
But it seems like my pondering was premature. The Biden Administration may have to deal with a Republican Senate. Big issues like racism, climate change and health care are likely to remain on the shelf.
One day there may be serious, across the board change. But it won’t be today.
Scott Graber is a lawyer, novelist, veteran columnist and longtime resident of Port Royal. He can be reached at email@example.com.