It is rare that I discuss tort reform with someone without getting a reaction and an opinion – either pro or con. What I recently realized is that in raising the issue, I have defined it in that particular conversation. By that, I mean that, in each instance, I have focused the issue on damage caps, loser pays or joint and several liability, etc. What happens, I wondered, if we don’t define it?
That question has led me to change my approach. I have taken to asking those I believe to be free market advocates and tort reform advocates to define the term as they understand it. Interestingly, I have yet to hear a comprehensive definition. "It’s about putting caps on damages so that the civil justice system isn’t a lottery." "It’s an attempt to reduce the number of frivolous lawsuits." "It’s a system for reining in greedy trial lawyers." But each of those, even if true, are only component parts.
To begin with, if you believe in free markets, it is hard to understand how you would advocate tort reform (see – U.S. Chamber of Commerce). But jumping past that, if you want to honestly discuss tort reform, you must do so comprehensively. If you are discussing frivolous lawsuits, you must also include frivolous defenses and SLAPP lawsuits. If you want to discuss damage caps, you need to include insurance reform – both liability and healthcare insurance.
Principally, however, one must understand the basics of the civil justice system and what the real facts are. Unfortunately, proponents on each side let their party’s political plank on tort reform, with the corresponding generalized Google support, be the basis of their understanding. Isn’t that fair? I am representing a man who lost all four fingers on his dominant hand in the nip point of a conveyor belt. He is 35 years old and was making about $50,000 a year before he was injured. The best he can do now is minimum wage. When we talk about tort reform, we are talking about his life. Let’s get serious and leave politics out of the discussion.
