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Posted May 10, 2012

O'Connell, a Pioneer of Insurance Law, Retires from Law School

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O'Connell

His ideas about insurance law reached as far as Israel and Australia, and are embedded in many state laws at home, but University of Virginia law professor Jeffrey O'Connell's most notable career accomplishment may be showing the value of persistence.

Car insurance looked very different when University of Virginia law professor Jeffrey O'Connell first began studying it in the 1960s. It was expensive for policyholders, and 45 percent of seriously hurt accident victims weren't compensated at all. The cost of car accidents auto damage, medical expenses, income loss amounted to $5 billion annually, but auto insurers only paid out about 15 percent of that. Insurance companies focused on fighting claims in courts.

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Then O'Connell and Harvard Law School professor Robert Keeton, a leading tort law expert at the time, co-authored an influential book, "Basic Protection for the Traffic Victim: A Blueprint for Reforming Automobile Insurance." In it, they proposed a more efficient system for handling claims that was dubbed "no-fault" insurance. The pair lobbied for no-fault laws in states nationwide, and O'Connell traveled the world to help spread no-fault laws abroad as well, including Israel, Australia and New Zealand. It worked — at least 12 states have no-fault laws on the books, and more have variations.

But O'Connell, who will retire this month after 32 years on the Virginia Law faculty, isn't done with pushing for reform. He has fought for decades for similar laws to apply to medical malpractice cases, and helped draft one law now under consideration in the New Hampshire legislature. For O'Connell, insurance is not so much about blame — it's about building a fair but efficient system for accident victims and policyholders.

"One of the problems with tort law is that it's a combination of morality with amorality, because you are talking about a wrongdoer paying the innocent party — but the whole thing is underwritten by insurance, which in turn is based on mathematics," O'Connell said. "That is a basic problem with tort law — it's this combination of mixing up morality and mathematics, which are a very ill fit."

O'Connell

A former student called O'Connell a "virtuoso
classroom teacher."

O'Connell and Keeton's plan in 1965 for a new tort law model took blame out of the question in order to remove the civil trial process — in which lawyers take a large chunk of any award or settlement — and instead expedite payment to accident victims. In return, the victims would have to give up potentially large payouts for pain and suffering.

When accidents are underwritten with insurance, O'Connell said, the person at fault doesn't really pay anyway, and most cases end in a settlement.

"[The victim] doesn't thereby get vindicated by a verdict. At best, the case is settled four years later, with a lawyer taking 30, 40, sometimes more percent — the morality of that is diffused, to say the least."

O'Connell spent his career trying to change tort laws nationwide to better reflect the impersonal nature of the insurance system and provide improved outcomes for accident victims.

"For nearly 50 years they have been debating his ideas in legislatures," said Widener Law School Professor Chris Robinette '96, a former student of O'Connell's who co-authored a book on tort reform with him in 2008. "Certainly tort law has its place especially for those circumstances that are egregious. But I also think that in many cases it would be beneficial for both plaintiff and defendant to reach a resolution more along insurance lines than more along full-blooded tort lines."

O'Connell wrote or co-wrote 12 books on insurance law and hundreds of articles on the topic, won two Guggenheim fellowships for his work in the field and taught and lectured around the world on the subject.

Professor A. E. Dick Howard praised O'Connell as a "giant" in American tort law who has an international reputation.

"Jeff O'Connell's impact is by no means limited to the academy," Howard said. "In his efforts to bring about legislation to implement no-fault insurance and to reform medical malpractice litigation, Jeff is a model of the law professor who puts his ideas into action. He has succeeded in framing debate, in state legislatures and elsewhere, over issues of national importance."

An Early Influence

Some of O'Connell's first encounters with the legal system came courtesy of his father, who, after working as a real estate developer in Worcester, Mass., would testify as an appraiser in litigation over eminent domain disputes.

His father, O'Connell said, was smart enough to understand the theatrics of the courtroom. He would pause before answering preliminary questions like "State your name for the court" so that later, when he got a tough question, the jury would assume he was always deliberate with answers. Not surprisingly, he also encouraged his son's interest in public speaking, theater and debate.

"I had some skill at it," said O'Connell — who would teach public speaking at Tufts University while working his way through law school at Harvard. He acted in plays throughout school and later as a young Air Force lawyer in San Antonio, Texas.

After practicing for five years, O'Connell started teaching as an assistant professor at the University of Iowa's law school. When the torts teaching job opened a couple years later, he took it as what he thought would be a sideline to his concentration in labor law.

O'Connell

O'Connell shakes hands with Dean
Paul Mahoney at the 2012 Law
Alumni Weekend.

"But I quickly found that torts law was a disaster," he said. "These cases were taking so long and chewing up so much money and leading to so much uncertainty that the system had to be reformed."

O'Connell wrote Keeton, the author of the torts casebook O'Connell assigned in his classes, and soon received an offer to visit Harvard Law School for a year to work on a project to reform automobile tort law. He took leave from Iowa, and the resulting book led toward the creation of no-fault insurance laws.

"The two things we did that made a difference — we actually drafted a bill to implement the idea, which was very rarely done by legal academics, and we went out of our way to hire an actuary to find out how much it would cost," O'Connell said.

The result was "a practical, thought-out, detailed proposal that a legislature could simply take and revamp according to its local format."

Though the public was on board with reforms because of how expensive car insurance had become, it took some time for the idea to catch on among state legislators, and the professors had to become both lobbyists and publicists to spread the word. Eventually one politician would help.

"A young back-bencher in the Massachusetts legislature had been a student of Keeton's — his name is Michael Dukakis — he got interested in the idea and introduced it in the Massachusetts legislature," O'Connell said. "It didn't go anywhere for a while, but he kept at it. And he made his name based on the work he did pushing the idea, which Massachusetts was the first to adopt. He went on to become governor based on the reputation he earned, and ultimately a Democratic nominee for president."

When his year of leave concluded, O'Connell returned to the Midwest, this time at the University of Illinois, where he taught torts and other subjects for 15 years. He wrote another book with Arthur Meyers, "Safety Last: An Indictment of the Auto Industry," in 1966 — published just months after Ralph Nader's "Unsafe at Any Speed," which made Nader famous as a consumer advocate.

But O'Connell made time to continue to lobby for change in state tort laws.

"Between Keeton and myself, we must have gone to almost every state in the union to testify before the state legislature or before an insurance meeting or before a bar meeting," he said. "It was very controversial. The trial bar was bitterly opposed to it, and I can understand that — we were changing their way of doing things in a drastic way and costing them a lot of income and work in which they believed."

After many states eventually passed no-fault insurance laws, O'Connell was ready to tackle product liability and medical malpractice next. But Keeton decided to drop out of the effort.

"These cases were much more complicated, took much longer," O'Connell said. "Keeton replied, 'I encourage you to do it, [but] I'm out of here,' in effect … He increasingly found [the lobbying] unsatisfactory." Keeton went on to become a federal judge, and died in 2007.

Around the time O'Connell published his first article proposing his "early offers" plan, in which victims of medical malpractice would consider a quick settlement in return for not seeking pain and suffering damages, Virginia tendered an offer to teach. He took it.

"I continued to work on schemes for trying to work on medical malpractice and product liability, and, to be perfectly frank, didn't have the same success, partly because of what Milton Friedman once said — it isn't enough to have an idea — the stars have to cross, it has to be the right moment, [and] there has to be the right receptivity to it in the public's mind."

Unlike with auto insurance, the costs of medical malpractice were hidden — patients weren't paying for it directly, O'Connell said. And the medical profession had concentrated on other reforms that would call for less sacrifice on their part, he said.

"The medical profession was interested only in laws that would restrict the rights of patients — they wanted to put caps on pain and suffering damages, they wanted to shorten the statute of limitations — almost everything they proposed would either make it harder for the patient to recover or to get paid less if he did succeed, or both," he said.

Even as he worked on reforming insurance laws, O'Connell also took time to pursue his other interests and connect with his brother, Thomas, who served as a deputy director of budget for the state of New York and also as a community college president.

"We began to use our joint talents to write book reviews," O'Connell said, including articles on the legal woes of Truman Capote and the Wright Brothers. They wrote several articles and books together, including "Friendships Across Ages: Johnson and Boswell; Holmes and Laski" (More) and a recent book on some of the 20th century's most notable college presidents. (More)

'Virtuoso Classroom Teacher'

O'Connell, who has taught the courses Torts, Advanced Torts, Insurance Law and Legal Drafting over the years, said he would miss the classroom.

"Students at this and other law schools that I've taught at are very bright young people," O'Connell said. "It's actually amazing — no matter how many times you've thought through something and had the idea exposed to students, to lawyers, to legislators, to insurance counsel — students, in their wonderful, refreshing novelty can come up with something that you hadn't thought of. And that's always (A) — unnerving, but (B) — in a way, thrilling."

O'Connell

O'Connell drew this self-portrait
doodle in the 1970s.

O'Connell takes seriously the performance aspect of teaching — he commits to daily voice exercises — as well as the importance of instructing students on practical issues.

"One of the things I emphasize to law students is they are essentially wordsmiths — they are putting words together either in writing or orally," he said. Whether you are trying medical malpractice cases or serving a client in an industry with other terms of art, "You've got to know the language."

Robinette said O'Connell taught him much about how to teach.

"I learned that people remember things better if you entertain them as you teach," he said. "He was a phenomenal classroom teacher, he's a virtuoso classroom teacher — very engaging, funny, charming. We talked about torts more outside of class than any other class because of his teaching."

Fellow UVA law professor Kenneth S. Abraham, also a noted tort law expert, said he appreciated O'Connell's contribution to the Law School community as a "wonderful" colleague.

"He has been supportive of my own work on insurance and tort law, he has never asserted his prerogatives as the senior person in these fields on our faculty, and his breadth of knowledge and experience have been invaluable to those who have followed in his footsteps," Abraham said.

"Jeff has been a genuine pioneer in the law," Abraham added. After developing the idea of no-fault insurance, O'Connell was "creative in modifying the idea to apply in other situations, with his 'choice no-fault' and 'early offers' proposals."

Though O'Connell continued to traverse the country promoting his ideas on medical malpractice reform to medical groups, insurers and legislators over the years, he also saw many false starts to promising leads. Legislation that was introduced in the U.S. Congress and in Massachusetts never got off the ground.

"I'm still at it and it keeps me off the street, as they say," he said. "I've enjoyed the controversy. I don't take it personally. Your ideas should be tested by opposition."

Several years ago the head of a New Hampshire hospital approached him about bringing a bill on medical malpractice reform before his state's legislature, but the effort was abandoned after the election in 2008 of President Barack Obama.

"The Democratic Party has been closely tied to the plaintiffs' personal injury bar," he said, "and so the plan was shelved."

The Republicans' comeback in the 2010 election revived hopes that legislators might be more sympathetic, however, and a bill is now before the New Hampshire House legislature, having passed the Senate by a wide margin in March. O'Connell recalled his testimony before the House Judiciary Committee in April, addressing some pointed questions by opponents of the bill.

"There's a price to be paid for no-fault," he said. "You're taking away this elegant, individualized justice, which becomes unworkable because you're trying to do so much with fragile evidence that can be manipulated in court."

O'Connell said the bill's supporters are optimistic for its success, "which is encouraging because New Hampshire is the first to try this idea."

Although it makes sense to reform tort law — particularly product liability, where it's easy for plaintiffs to shop court venues — at the federal level, O'Connell said he would get pushback from still another corner — states' rights advocates.
"Tort law is traditionally state law," he said, adding that President Richard Nixon wanted federal no-fault auto insurance law reform, but failed in the face of Republican opposition.

"I keep pushing for federal legislation, and indeed Sen. [Mitch] McConnell from Kentucky introduced a bill that would apply to all personal injury actions incorporating this early offers idea," he said. "There were hearings on it but it never got out of committee."

Though the debate over tort reform continues at home, O'Connell and Keeton's ideas have taken root in some foreign countries. Israel has no-fault auto insurance laws, as does New Zealand and Australia. One of New Zealand's leaders in the movement, Geoffrey Palmer, who also served as a visiting professor at Virginia Law, eventually served as prime minister there.

O'Connell, who has been teaching part-time in recent years, said he thought it was time to retire this year, and is happy that his final course evaluations were positive.

"I'm a widower, so I've had the feeling that the more I can keep in touch with people — young people and colleagues — the better off I'll be," he said. "I got very good appraisals on both of the classes I taught in the fall and the [January] term. I said 'Well, I better leave while I'm ahead.'"

O'Connell said he doesn't have plans to travel like many do when they retire —he's done that plenty already — but he will likely spend more time with his children, Mara and Devin, and his grandchildren. He will keep on pushing for tort reform, even as he gets the occasional, more personal glance of the industry through his son, who has spent his career working in a field O'Connell knows well — car insurance.