Walter Olson Buries the Lead

News flash: Walter Olson at overlawyered.com admits that some lawsuits have merit. In a post about Sen. John Edwards’ past as a trial lawyer, Olson states: “I don't assert that every lawsuit blaming obstetricians for infant brain damage is unfounded.” In other words, some such lawsuits have merit.

Seems obvious, and not too much of an admission--until you consider the source. Walter Olson and overlawyered.com rarely admit that any big-damage lawsuit has merit. Incidentally, Olson’s comment was buried at the end of a long post about John Edwards that was more innuendo than substance. Read what Olson has to say, then return for my synopsis: according to Olson, Edwards is a “silver-tongued trial lawyer” who based his wins against obstetricians found liable for botching infant deliveries on “junk science.” Look closely, though, and you’ll discover a flaw in Olson’s reasoning. Edwards’ science was perfectly reliable when he was winning his trials, but only now might be subject to re-thinking based on recent scientific advances. (Though I’d argue that the claimed "advances" are still subject to question in a courtroom). Thus Olson is wrong when he concludes that Edwards’ cases are examples of “cases of debatable scientific merit.”

Science moves forward, yet no “reform” of our nation’s tort system will ever be able to include a mechanism that can foresee scientific advances before they happen. Among us mere mortals, not even federal judges are fortune-tellers. And as for Olson’s other point--that American jurors are too easily won over by appeal to emotion--jurors are smarter than he gives them credit for. Often enough, they even rule for the defendant. And however they rule at the end of a trial, jurors also listen to a presentation by a lawyer for the defense. To hear Olson tell it, you’d think the defendant-doctors in Edwards' cases were left alone in the courtroom with Edwards, unable to benefit from an appeal to the jury by their own “silver-tongued trial lawyers.”

For similar criticisms of Walter Olson's post, see "Overlawyered on Edwards" at Legal Memo-Random and "From the Department of Duh" at Sick Transit.