Tort Reform Issues

Do we need tort reform?

As I’ve thought about it generally, the nature of disputes, resolved by any means other than reconciliation, leaves 50% of the people involved happy and 50% unhappy. The defendant loser will sometimes claim “they did nothing wrong” or that the jury was improperly swayed. When the defendant wins a jury verdict, it has become more popular to now claim that it was a frivolous case to begin with.

But that usually ignores the fact that the judge, as gatekeeper so to speak, had found it was not frivolous by virtue of letting it go to the jury. When the plaintiff loses, they too can feel cheated and make similar types of claims. But most of the time, whoever loses on either side just feels a little bad about it and accepts that the system made a decision with which they can and have to live. There is usually very little serious complaining because the great majority of the time all parties feel they got a fair hearing.

I have tried about 135 jury trials in my 32 year career and obviously have handled thousands of related hearings. I’ve been involved in criminal and civil cases. I’ve spent a great deal of time talking about these subjects with other lawyers - both defense and plaintiff oriented, Christian and not - and find their conclusions not very different from mine. Through those contacts, I’m personally aware of literally hundreds of tried cases and how the verdicts related to the facts. I believe our system of justice, including the right to trial by jury, while not perfect, is very good. At the end of the day, only 12 people in the world actually hear all the evidence in any given case and they are the only ones to deliberate with each other to make a decision. Most often they try hard, do a wonderful job, are proud of their service, and reach a fair decision. So our criticism of any individual case and, for that matter, the process as a whole should be made with great care. We should be very hesitant to focus on isolated cases, the effect of which can completely skew one’s ability to see the overall justice that usually results.

So that said, here are some of the basic concerns I have with tort reform.

1. Some people claim that awards are simply too high. That is not my experience at all. As a matter of fact, most of the tort cases are really quite small and, while there are undoubtedly cases where the award really is “too high,” there are many, many more cases where, at least in my opinion, awards are simply “too low.” But small cases never get publicity and nobody wants to talk about those in any serious context. Thus, it is only the large, seemingly outrageous cases that get reported. Often, that reporting is inaccurate (and from personal experience very inaccurate) and important facts are neglected. Nevertheless, based on such reports, the perception becomes that those cases represent the norm. They do not. And yet that wrongful perception fuels much of the argument crying for tort reform. I would urge that tort reform often amounts to a reaction to the inaccuracy of sound bite reporting that takes place relative to certain cases and is not borne out by a serious study of the majority of cases where people suffer injury.

2. Most cases do not even get to a level where a damage limitation will apply. Those that do typically involve people who truly have been hurt the most. Limitations on damages thus only affect the worst injured, the ones who need help the most. In Kansas, we have had (for about 15 years) a limitation on all pain and suffering, disability, disfigurement, etc. such that the total verdict for those types of damages cannot exceed $250,000 (with no inflation adjustment). I have tried many smaller cases but, by way of example to make a point, I have tried cases for a number of people with serious back or neck injuries that will affect them for the rest of their lives. The juries in many of those awarded fair verdicts in the range of $150,000 to $235,000. The cap did not apply, my clients were compensated fairly, and nobody complained. On the other hand, to mention a few, I have tried cases for 1) a lady who was raped; 2) a man whose life was in essence destroyed after being accused by our NBC affiliate of being the infamous BTK killer; and 3) a nurse who reported another nurse’s mistreatment of an elderly lady in a nursing home, causing her death, refused to falsify the records, and was fired and slandered to the police department creating huge and lifelong problems. Jury verdicts in those cases ranged from $500,000 to $1,100,000. All were reduced to $250,000, just a little more than the fair verdicts for the back injuries described above. But those clients needed more just to begin to fairly compensate for the broken pieces of their lives. I still can’t figure out the justice of that.

3. Limitations are discriminatory and devalue life. In wrongful death cases, heirs of individuals without financial dependents (typically for example those under the age of 25 or in excess of 65) have no real right to economic damages caused by the loss and thus are treated arbitrarily. The value of their loved one’s life is in essence declared to be nothing more than $250,000. Where income loss does apply (typically for wrongful death of persons with dependents and who are earning income or for personal injury income earners) there is a theoretical solution because their proven lost wages are recoverable. But even that becomes much more problematic in real life than it looks like on paper. Juries are not allowed to be told about the limits on damages so, even in a case where there is other damage, it is often a “trick” of the defense counsel to urge that a jury award huge damages in a category where they know the judge will be forced by law to reduce them and to urge lower amounts of damage in a category where later reduction would not take place. In that way, the defendant, through counsel, can appear sympathetic, look like they are willing to accept responsibility, and suggest even large damages in the limited category. The jury is understandably upset when they later learn what really happens to what they thought was their verdict. To be fair, that doesn’t happen all of the time but it is a practical problem in certain cases.

4. Because of the cap, even in clear liability cases, defendants will not typically offer $250,000 when that is the only type of damage that really exists. Simply put, they take the attitude that since that is the most they can lose, and they might just get lucky, they’re not going to settle for that much. Thus, in serious cases, the caps significantly reduce the chances of settlement and become an unfair means of leverage to force an injured person to accept something less than what they ought to receive. I cannot emphasize enough that this is a very serious problem that occurs in many significant cases and yet is not immediately noticeable by the average person and certainly has never, to my knowledge, been the subject of any real discussion.

5. Businesses typically talk about their costs, expenses, and lost productivity. Nobody ever presents the argument about lost productivity of the individual who has been injured or their voluntary caretakers. Their lives can actually become wasted or at least significantly limited but nobody considers that. Sadly, I know any number of people whose productivity has been limited for years because of emotional trauma, disfigurement, or some other disability and for which they are not potentially allowed to recover fair compensation. They often feel their life becomes valueless. They are faced with the decision of how to expend the physical and mental energy that has not been taken from them - do they work as hard as before or save something back to invest with their family after work. Do they retire early? How do they manage their lives? Those are among the difficult decisions.

6. We trust juries in criminal cases to consider whether somebody should actually be put to death as a result of murder and, in some states, allow them to make significant sentencing decisions that can affect a person’s liberty for the remainder of that person’s life. We don’t question their right to do that. And rarely does anybody claim that the jury acted on a “whim,” that they “simply” wanted to punish somebody, or that the jury was not capable of making that difficult decision. But for some reason, when we ask a jury to deal with money, we claim they can’t be trusted. We secretly limit their rights of decision making. It has always baffled me why we supposedly can’t trust jurors to award fair compensation in civil cases when they alone have heard all of the evidence.

7. The Constitution provides that citizens are entitled to a trial by jury. State constitutions typically provide the same. Even corporations have the right to a trial by jury. We always want to insist upon our constitutional rights but for some reason, in this isolated area of tort damage, everybody wants to forego those rights and limit what a jury really can do. In other words, we say that you only have a limited constitutional right to a jury trial up to a certain amount of damage. I believe tort damage limits are unconstitutional.

8. There are already protections in place. Some people refer to the McDonald’s coffee case as a present example of the need for some reform. They typically don’t know the facts but rarely does anybody report that the judge reduced the large verdict for punitive damages from $2.7 million dollars to $480,000 plus the fairly minor actual damage. Why would we need tort reform in that particular instance? The existing protections worked and continue to exist within the current system. More recently, some judge sued a dry cleaners. Assuming the stupidity of that case, tort reform would not and could not have stopped that case from being filed. Current protections are better than tort reform would ever be. Assuming the facts are close to what has been reported, that judge will or should have his license disciplined and could be sued for malicious prosecution, except due to tort reform, that state probably limits such tort recovery to some low amount that couldn’t possibly reflect the severity of the damage suffered.

9. Why don’t we limit business lawsuit damages? Businesses suing each other is frankly one of the fastest growing areas of litigation. The company that doesn’t think it is fair that it gets sued if it causes hurt to somebody or claims that litigation costs are ruining their business rarely minds suing another business or someone else. Many operate with an obvious double standard.. Productivity loss from that is probably something worth further exploration.

10. The concept of frivolous lawsuits is one that I really find frustrating. Again, while there are exceptions, I know of no lawyers that handle cases on a contingency fee basis that want to file a frivolous lawsuit. The costs are prohibitive and the idea that defendants get scared into paying off big in settlement of frivolous cases is simply something I can’t ever remember seeing. They might make token settlement offers but never enough to influence an attorney to deliberately file a bad claim I often tell my doctor friends that I am their best friend because I probably turn down 19 of every 20 potential medical malpractice cases that come into my door. Many of those are turned down, not because there was no negligence, but because the damages are limited or at least insufficient to justify the huge expense and risk of pursuing the case.

Concluding thoughts: I believe much of the tort reform claims are based on bad evidence. The public’s perceptions have little basis in reality. Reporters responsible for informing the public about such things rarely attend an entire trial but instead find their sound bites somewhere in the middle of a day and present that either on TV or in the paper as representative of what is taking place in the trial. My personal experience is that reporters often only attend a few minutes each day, if that, because until the verdict is in, they don’t know if it is worth their time. So they report conclusions that are often wrong and, if the verdict seems newsworthy, i.e. is really big, the problem is even worse. But let me reiterate. I don’t think juries typically get carried away on these things. Sure it happens but I would suggest that for every time a jury awards too high of a verdict, they award many more verdicts that are way too low for the injuries sustained. That in part is because they have been told for years now by news, insurance company and political sound bites that verdicts and awards are just too high. But if we really think the jury system is that flawed, and juries commonly act on “whims,” we should focus our concerns on what that means to the criminal side of the system where people actually depend on juries for their liberty.

Our society has an obsession with “fear of lawsuits.” But one’s actions must be determined, in advance, based on what is right or wrong - not by what we fear about a lawsuit. If we concede to that logic, we base our justice system on something other than what is right or wrong. I’ve never understood how it should be otherwise. I certainly don’t think such fear is justification for denying full justice to someone who is injured. Nor would I think my fight against it should be justification to obtain compensation from someone who did no wrong.

The “pick a few cases” approach is what has been used to support tort reform. It is too easy to find a few cases that make the news, complain about them, and draw the incorrect conclusion that they represent the norm. Then, from that conclusion, fear is born and gets fed until we get to the point that the fear itself, rather than the reality, becomes the basis for demanded change. But tort reform will simply not provide a real solution to that “problem” - to what often amounts to wishful thinking. It reminds me of the question, “would you rather be safe or feel safe?” They are not the same thing. Legislating to “feel” safe won’t actually make us safe. Tort reform has the same deficiency and for every problem it theoretically solves, it creates another unintended one.