25 January 2004
A new tort recipe
This editorial in The Oklahoman sums up the more rational calls for tort reform thusly:
A tort system that is out of balance in favor of defendants is not the goal of reformers. The right to pursue a legal remedy is cherished and would remain intact. Yet a system that encourages frivolous litigation, diminishes personal responsibility, enables bogus class-action settlements and favors expensive court battles over mediation is not a system that equalizes the interests of both sides in legal disputes.
Tort litigation has become an industry, not a path to justice but a path to transferring wealth from producers to litigators. The annual cost of this industry is estimated at $180 billion to $200 billion a year, of which about one-fifth goes directly to plaintiff attorneys and an untold amount to defense attorneys.
Tort reform is about putting the brakes on this industry's growth.
Some folks proclaiming themselves to be "pro-business" would argue that there shouldn't be any lawsuits permitted at all, that everything should automatically go to arbitration and they get to pick the arbiters, of course. This is more than just unsatisfactory; it is insulting.
But we can't go on like this, with every conceivable mishap being litigated regardless of merit. Much is made of enormous awards made by juries, but they are the exception, not the rule, and they are a symptom, not the disease; even when a plaintiff loses, the cost of litigation equals an increase in the cost of living.
Ultimately, what we need is the realization by business that improving products and services is less expensive in the long run than trying to squeeze costs and quality, and an acknowledgment by consumers that sometimes it's our own damn fault. I don't think you can achieve either of these by legislation. Posted at 9:34 AM to Political Science Fiction
Perhaps the biggest reform to the tort system would be a "loser pays" outcome, especially if the attorneys involved were on the hook for fees as well.
It forces plaintiffs to ask the question, "Do you feel strongly enough about your case to take the risk?"
It's not the cure, I suspect, but I have no doubt that it would help matters. Right now, any doofus who uses a paint-remover gun as a hair dryer (I have one of these, and it looks vaguely like your $10 Conair drugstore special) can file a case and get someone to argue it for a third, maybe half, of the prospective take. If it takes $20,000 in legal bills for said doofus to smarten up, it strikes me as a bargain.
Much has been made about various lawsuits that frankly never make it to court. The cases that do sound frivalous but issued large awards are usually misrespresented. Judges are not stupid, they will throw out a bad lawsuit unless there is cause, and juries are not stupid they will not award damages unless there is evidence. I've done my jury duty before, sat on a civil case, we didnt just award money to be spiteful, I dont remember what we decided but it was fair to both sides.
Limiting awards is not the answer by a long shot, that will only hurt people that deserve compensation. If there is any need for reform its to make sure bad lawsuits get weeded out before they get to a trail.
Never forget that the courts are our main tool to address injustice, when we start denying our own rights in favor of helping companies keep costs down, we shoot ourselves in the foot.
Okay, instead of merely limiting awards, let's limit the percentage of awards that attorneys can claim for their own.
In large class-action lawsuits, the "plaintiffs" have almost nothing to do with instigating the action, and receive a pittance when it's all over. Meanwhile the legal team, which invariably initiates the action, receives millions of dollars for this predatory practice.
I would believe in the courts as a means of addressing injustice if plaintiffs were not, as so often happens, merely window dressing for the attorneys' money-grubbing.
One characteristic of the current system that hasn't been mentioned is the existence of "Judicial Hellholes" where it's virtually impossible to get a fair trial. They are responsible for some of the most outrageous jury awards in civil cases. See http://interested-participant.blogspot.com/2003_11_01_interested-participant_archive.html#106824944227948827