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Ask yourself, “Who do you trust most?”

In answer to that question most folks will respond by thinking of family members, their co-workers, and their neighbors. Public opinion polls usually rate as the most trustworthy professions firemen, teachers, and nurses. Near the bottom of the list of trusted professions are usually lawyers, politicians, and journalists.

During the campaign season, certain politicians find it expedient to rattle the sword of tort reform and rail against “trial lawyers.” They recount stories, like a lady who was burned by hot coffee from McDonald’s and received a $2.9 million verdict, in an effort to inflame the sensibilities of voters. They tell you they want to stop the “explosion in litigation.” They want to place caps on damages so attorneys can’t “drive up insurance costs.” What they don’t want you to know is the truth behind the rhetoric. The forces behind the alleged “tort reform” movement know those opinion polls and exploit them.

The tort reform debate has been framed as a way to prevent frivolous law suits filed by greedy lawyers on the behalf of unworthy clients. Funny how the “reformers” never mention the judges – and seldom mention the juries (unless it is to mock them for their “obscene” awards). The focus of tort reform rhetoric does not fit with the nuts and bolts of how litigations works, but reform advocates don’t want the facts to get in the way of their argument. Here are some points to consider:

Frivolous law suits should be thrown out by the judges well before trial – Through the mechanisms of the Motion to Dismiss, the Motion for Judgment on the Pleadings, and the Motion for Summary Judgment, judges have the power to summarily get rid of cases that are patently frivolous. If there are frivolous law suits that make it to trial – blame the judges.

Jurors have brains, free will, and get to hear both sides of the story – If you would believe the advocates of tort reform, every plaintiff’s attorney is a dashingly handsome scoundrel who, through the cult of his personality, wills a simple-minded jury to give millions of dollars for the most trivial of incidents. Journalists are complicit in perpetuating this myth. Referring back to the famous McDonald’s coffee case, have you ever heard the fact that McDonald’s had been presented with over 700 claims of people being severely burned by their coffee prior to the (in)famous law suit brought by "little old lady" Stella Leibeck? Did you ever hear that although McDonald’s had settled many of those claims, they did not make the effort to reduce the 190-degree temperature of their coffee until after the $2.9 million award? Sadly, many corporations perform purely financial cost/benefit analyses to determine their practices – the health and well being of ordinary people are not on the ledger. Ask yourself, if Stella Leibeck’s suit had been limited to a cap of $250,000 would McDonald’s have altered its practices out of the goodness of its corporate heart?

If We Don’t Trust Lawyers and Politicians Why Are We Attacking Juries? – Most tort reform is based on limiting what a jury is allowed to do – usually in terms of limiting how much money they can give. But who are the juries? They are the firemen, teachers, nurses, friends, and relatives that we all know and trust. How does it make sense to take the case out of the hands of the people most of us trust? Even stranger is the idea that the power of the jury should be transferred to the politicians (who very few of us trust) or judges (who in many places are lawyers and politicians).

The dirty little secret behind tort reform is that it takes the fate of litigants out of the hands of “our peers.” The motive is simple: Juries struggle to carry out what they think is justice, and justice is seldom predictable in every case. The unpredictability of justice is a thorn in the side of those whose only concerns are spread sheets and the bottom line. So, if and when you are ever in a position to make a decision on tort reform, ask yourself whether you want to live in a predictable world or a just one?

4 Comments

  1. Clay: This is a brilliant post. Our justice system is unique in that it allows citizens to sit in judgment of other citizens. That precious right is what is being given away with tort reform. Citizens, heal thyselves. You don't need the government or, worse, corporate America, dictating their interpretation of justice to you.

  2. Gravatar for Jane Akre

    Very good post - Thank you for laying out this anti-American tort reform movement so clearly !!

  3. It is one of the reason I am surprised that people who claim to be for the people don't love the jury concept and the functional way it works. Why do they wan more government control?

  4. Gravatar for John Hopkins

    Really great post! The jury system is still the very best arbiter in legal disputes. This article is a great educational toll for the public to understand a system often, unfairly condemned by pundits with an agenda that has little to do with the best interest of the public.

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