Sisyphus Shrugged

Once upon a time, a native Tulsan needed a job and wanted to start a newspaper. "It would give voice to the voiceless, right wrongs and do good!" he thought.

And it did. And it grew, for all the right reasons--with hard work, good people and a true mission. Everybody loved it.

But time went on, jealousies arouse. The good publisher, knowing and having true faith in the good people who are his readers, still took heart, even as the Evil Digerians gathered from time to time seeking whatever evil people seek from being evil.

Such was the case, with storm clouds gathering, some several months ago when UTW was accosted for publishing, in good faith, a photo illustrating a story in our erstwhile Style section. An attractive photo, in good taste. Almost forgettable.

All of a sudden, the noble publisher was challenged to duel with the American court system.

For most of us "tort reform" is a nebulous concept invoking images of sleazy plaintiff's attorneys or irrational, sky-high jury verdicts. Mike Easterling's Cover Story, Page 18, cites the McDonald's hot coffee case as the one which comes to mind when regular folk discuss tort reform.

But the court system in the U.S. is boiling over with frivolous cases brought by citizens emboldened by the prospect of an easy payday--the new American Dream--the mistaken belief that every perceived injury or subjective wrong can and should be remedied by payment of money.

We read the newspapers and we shake our heads in disbelief yet again, when the scenario points clearly to scavenging attorneys preying upon weak, lethargic minds to pick the pockets of hardworking business owners.

Making the situation almost hopelessly complex (and maybe the core of the problem) is the fact that many judges provide fertile substrate for these bottom feeders by not gleaning from the docket cases of dubious origin.

This is great water cooler blather until you or your business has been the defendant in a seemingly frivolous lawsuit. UTW lived through this painful reality last year. Before being sued I was a leftward leaning, victim's rights kind o' dude. Having seen the failings of the current system firsthand ... and paid the price both literally and emotionally ... I am now a vigorous advocate of reforming the civil tort litigation process.

The facts as we have shared them are that UTW bought a photo from a freelance photographer. The subject of the photo said she had several taken years ago but never received them from the photographer. She claimed to have paid for them. The photographer alleged he was hired by an acquaintance who was working with potential models to shoot the photos.

The woman in the photo sees it in UTW. (By the way, did I say the photo is very attractive and the accompanying article is flattering.) She is simply upset. Her husband calls to rudely reprimand UTW but refuses to leave a name, number, or message so that the Editorial Manager can call him back. UTW talks to the photographer and he 'fesses up. He's very apologetic.

Several weeks later UTW receives a letter from an attorney representing the woman. The letter asserts the photo's publication has caused the woman emotional distress and UTW has misappropriated the woman's image. UTW talks to the attorney and sends a written reply; explains the situation and puts the attorney in contact with the photographer. UTW hears nothing else for several months and naively assumes the matter is resolved.

Then a different attorney writes threatening litigation if UTW does not pay the woman unspecified damages. When UTW talks to this attorney the discussion goes in circles: attorney asserts the girl has a case against UTW; UTW replies, "No, the case is against the photographer." Her attorney, "I disagree." UTW, "I believe you are wrong." And so on.

Who wouldn't get defensive in a situation like this?

Finally the woman's attorney asks UTW if it has noticed its insurance carrier. UTW naively answers, "No, why would we notice our insurer when we have acted in good faith and there is no cause of action against UTW? I'm not even sure we have insurance for something of this nature. And anyway, the cause of action is against the photographer." The attorney responds that if UTW would simply call its insurer he is certain the insurer will want to settle the matter before a lawsuit is filed.

Ah hah! The light bulb clicks on. This might not be about whether UTW has done something irresponsible or acted in bad faith. It might not be about "pain and suffering" even accidently caused by UTW. This might possibly be about a woman being told by a lawyer that if she threatens to sue UTW there will be a deep pocket which will have plenty of moolah for both her and her attorney.

Keep in mind that as soon as UTW received the first phone call, we proactively tried to figure out why the caller was so upset. In the almost 20 years we have been publishing UTW we have never hesitated to correct an error. When the woman, through her attorney, requested UTW remove the photo from its website it was gone in less than an hour. We have always and in all things done our best to act in good faith. And we have assumed that in doing so others will act in good faith toward UTW and any unexpected problems can be resolved with a grownup discussion between the parties. Naïve, yes.

So, what is the solution? I have given it a great deal of thought. I have asked the attorneys I know. I have paid fees and written a settlement check. I have sat through hours of court-ordered mediation where I felt like a hostage. Believe me, mediation might be a great idea, but it serves very little practical purpose.

I was hoping Mike Easterling could find the solution. After reading his piece I understand the issues on both sides more clearly and honestly don't see any of the current tort reform measures really addressing the problem.

Maybe we should heed the advice of Shakespeare on where to start. And then, once the deed is done, our nation can re-build the civil litigation system from the ground up.