Tort Reform?

I agree for the most part with the comments of another lawyer blogger. Sometimes they refer to themselves as blawgers. Be that as it may, this article makes some salient and timely arguments. I certainly am not an objective observer, but I would like to add some thoughts.

The subtle use of words in our society completely reinforces the power structures that are in place. Our country is not unique in this regard. It is the case in every single stable society that has ever existed. Otherwise, there would be much less "law and order."

In our culture, the perception is that the personal injury attorneys are the "bad guys." They chase ambulances; they prey on those who have no alternatives, they seek gain through the suffering and injury of others. The very mention of personal injury law or personal injury lawyer is typically somewhat derisive in common usage. Doesn't that make sense?

Now on the other hand, the lawyers who work for insurance companies to ensure the lowest possible responsibility are usually known as "commercial litigators." You rarely read or hear about the insurance companies' hand in things like high premium rates or smothering business. That blame falls squarely on the shoulders of the infamous personal injury lawyers.

Thus, enters "tort reform." That is the term that insurance companies and their lobbyists call the solution. As they articulate it, the problem is that high insurance rates are inhibiting the ability of businesses and doctors to "practice their love" all over the country, and lawyers are responsible for the high interest rates. The substance of "tort reform" is to reduce potential awards that plaintiffs could receive and I would imagine plans may even be to permanently cut off a plaintiff's right to sue altogether.

Let me illustrate the importance of this dynamic with a simple little story. Let's pretend that I like to steal wallets from people while walking down the street. I might get away with that for a while, but eventually, someone is going to catch me and call the police. I might get arrested, I might even be held in jail for a day or two. I have no idea what the sentence for conviction is in your jurisdiction, but at the very least I might have to do some community service.

Now let's pretend that I am a corporation who has been dumping waste into the local water supply. A few people might get sick, some might even die of cancer. Over a 10 year period, there may be numerous adverse heath and environmental problems. Those living in the community suffering from these problems would have no simple recourse. They could complain, protest, or even start an anti-Mark Inc. crusade among the local media affiliates. However, the police would never respond on your behalf and unless someone on the inside "blew the whistle" alleging that someone within is breaking the law, no one would ever be arrested. (Actually, those who protest Mark Inc. may be arrested for disturbance of the peace, or trespassing.) Remember, a corporation's job is to make money for its investors, so chances are the officers and directors of Mark Inc. calculated that it would be less expensive to pay the Environmental Protection Agency fines for dumping waste, which may or may not be enforced, than it would be to responsibly dispose of their waste.

The only recourse any one would have against Mark Inc. is to find a lawyer willing to file a lawsuit on her own dime (without interest as Mr. Stein pointed out). It is therefore, not at all surprising that there are forces pushing a "tort reform" agenda.

No one wants to hire a personal injury lawyer. That can only mean that something terrible has happened. However, when something terrible does happen it is at least somewhat comforting to know that, at least for the time being, you do have some ability to hold those who are culpable to account.