Read today that there is some new twist to suing BP. Seems that you won’t be able to sue if you are asking for a lump sum payment. That made me start thinking about all the suing going on these days. Then I thought about “tort reform”. It was then that I realized that I didn’t really even know what that meant. I mean, what is a “tort” and why do some folks seem so set on reforming it.
I looked it up and found that, “A tort is a wrong that involves a breach of a civil duty owed to someone else.”[i] For example, if I am in the park and want to practice my knife throwing skills and end up stabbing someone walking by, they could sue me for negligent behavior resulting in harm to their person. To win they would have to prove that a reasonable person would have known that throwing knives in a public park was a bad idea.
The classical purpose of tort is to provide full compensation for proved harm. In other words, if someone harms someone else, they should make up for it. Compensation should be, in the words of Lord Blackburn in Livingstone v Rawyards Coal Co, "that sum of money which will put the party who has been injured in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation."
Torts cover a huge swath of possibilities. There are tort laws that cover negligence (such as medical mistakes), trespass, slander, and product liability to name a few. There are even torts that cover citizens from another country. This is, “The Alien Tort Claims Act.” This 1789 act grants jurisdiction to US Federal Courts over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Since 1980, the ATS has been successful in cases involving torture, state-sponsored sexual violence, extrajudicial killing, crimes against humanity, war crimes and arbitrary detention. The Torture Victim Protection Act (TVPA), passed in 1991 and signed into law by President George H.W. Bush in 1992, gives similar rights to U.S. citizens and non-citizens alike to bring claims for torture and extrajudicial killing committed in foreign countries.[iii]
What we hear most about these days are torts involving a medical mistake. An example of that would be the tort of wrongful death. According to Law.com, “wrongful death is the death of a human being as the result of a wrongful act of another person. Wrongful death is the basis for a lawsuit (wrongful death action) against the party or parties who caused the death filed on behalf of the members of the family who have lost the company and support of the deceased.[iv]
These seem like a straightforward process that should not involve any controversy. This leads one to the wonder if there is some abuse in the process. Is that the reason that some folks want to reform the process? Let’s take a look at this idea of abuse in the system.
It is common these days to hear conservative politicians and corporate representatives charge that plaintiffs' lawyers--especially plaintiffs' tort lawyers--are abusing the courts by effectively extorting exorbitant awards from the defendants they target. Remember seeing this headline: Woman Suing American Airlines for $15 Million Claiming Lizard in Her Airplane Meal. On this view, the problem is most pronounced in state court, where local trial lawyers and their clients cast themselves as David to out-of-state defendants' Goliath.
"Tort reform," it would seem, is the answer--especially reform that will enable defendants to move more cases out of the state courts and into the defendant-friendly federal judiciary.
Omitted from this account is any thoughtful attention to the litigation practices of tort defendants and their counsel. However, manipulative, abusive litigation is a two-way street, and tort reformers should be equally concerned about abuses on the defense side.
For example, if a Missouri resident were injured by a tractor made in Illinois, the Missouri resident would tend to place the tort case in Missouri state courts in order to have a “home court” advantage. If the award would exceed $75,000 the defendant could demand the case go to federal court, where defendants’ lawyers could expect the advantage.
The critical point about removal--and the reason it is so prone to abuse--is that it is automatic. That is, a defendant sued in state court has the unilateral power to remove a case to federal court, and the state court has no power to review the propriety of the removal. [v]
Another area where some see abuse is in “Class Action” lawsuits. Class-action" lawsuits are intended to help a large group of individuals. They become a potent force when gathered in a "class" by lawyers who file suit on their behalf. Frequently, however, judges in cases ranging from unsafe trucks to fee-gouging banks approve deals that lack provisions to ensure injured consumers receive fair payments.
When a legal process set up to protect the public from corporate wrongdoing is subject to abuse to ensure huge fees for lawyers and puny rewards for the injured parties, it undermines public confidence in the fairness of the judicial system.[vi]
Another type of abuse actually comes from the trail lawyers themselves. A new report from the Center for Medicine in the Public Interest shows that Internet searches for medical information predominantly lead to trial lawyer-run Web sites designed to gin up lawsuits.
As you can see, tort reform is very complex with many moving parts. It is understandable then that it can seem overwhelming to the ordinary citizen. However, to make informed decisions one must take the time, if to not fully understand a subject, at least to understand the depth and breadth of the topic.
In the United States tort reform is a contentious political issue. US tort reform advocates propose, among other things, procedural limits on the ability to file claims, and capping the awards of damages. According to Forbes reporter Daniel Fisher, tort reform is "A catchall phrase for legislative measures designed to make it harder for individuals to sue businesses."
In Commonwealth countries, those initiating liability lawsuits must pay court costs as well as the legal expenses of defendants should they lose, thus greatly reducing the number of such cases. On the other hand, there are proposals to replace tort compensation with a social security framework that serves victims without respect to cause. In 1972, New Zealand introduced the first universal no-fault insurance scheme for all accident victims, which provides benefit from the government run Accident Compensation Corporation without respect to negligence.[vii]
Other ideas include the establishment of “Medical Courts” that would hear only medical malpractice cases. Proponents expect settlements in months instead of years. Another suggestion would be to say that physicians who practice according to certain scientific principles, performance measure, have done it right, and they could introduce that evidence in court.[viii]
For those that would like to keep abreast of the subject, a good place to start is the American Tort Reform Association at http://www.atra.org/.
[i] http://en.wikipedia.org/wiki/Tort
[ii] http://en.wikipedia.org/wiki/Tort_reform
[iii] http://www.cja.org/article.php?id=435
[iv] http://dictionary.law.com/Default.aspx?selected=2268
[v] http://writ.news.findlaw.com/commentary/20040812_morrison.html
[vi] http://www.ncpa.org/sub/dpd/index.php?Article_ID=3673
[vii] http://en.wikipedia.org/wiki/Tort_reform
[viii] http://www.foxnews.com/politics/2010/03/03/gop-proposed-tort-reform-reduce-health-care-costs-analysts-say/
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