Tort reform is misguided and tyrannical

The January 8, 2007 issue of BusinessWeek magazine featured a cover story entitled “How Business Trounced the Trial Lawyers.” The article described so-called reform efforts from around the country which have capped jury verdicts and made it increasingly difficult for ordinary citizens to gain access to the courts. While lawyers may have been a target, the real loser in this battle is the American consumer.

These so-called reform efforts have seriously restricted the kinds of asbestos suits that can be filed, set damage limits that have rendered medical malpractice litigation nearly comatose, virtually wiped out all lawsuits against drug makers, nixed class action suits, set ceilings on punitive damages, set caps awards for pain and suffering, and set arbitrary time limits on when product liability suits could be brought. In the process of proposing these changes, the business community has demonized trial lawyers as money-hungry thugs.

The rallying cry has become Shakespeare’s quote from Henry VI: “THE FIRST THING WE DO, LET’S KILL ALL THE LAWYERS.” But those who use this phrase against lawyers are as miserably misguided about their Shakespeare as they are about the judicial system which they disdain so freely.

Even a cursory reading of the context in which the lawyer killing statement is made in King Henry VI, Part II, (Act IV), Scene 2, reveals that Shakespeare was paying great and deserved homage to lawyers as the front line defenders of democracy. The accolade is spoken by Dick the Butcher, a follower of anarchist Jack Cade, whom Shakespeare depicts as “the head of an army of rabble and a demagogue pandering to the ignorant,” who sought to overthrow the government. Shakespeare’s acknowledgment that the first thing any potential tyrant must do to eliminate freedom is to “kill all the lawyers” is, indeed, a classic and well-deserved compliment to the legal profession.

In effect, the business of “trouncing the trial lawyers” actually hinders the rights of juries in America. Trial by jury is democracy in its purest form. When you tamper with the rights of citizens of make decisions in a court of law, you interfere with very basic notions of liberty and justice for all.

The right to a civil trial before a jury is specified in the 7th Amendment: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” Indeed, Alexis de Tocqueville observed that the jury system was one of the means whereby a self-governing people might hope to keep a constant control over their own affairs. Jury service teaches people to take a hand in their own affairs, and to regard as their business, all the interests of society.

The so-called tort reform efforts of late take away the self-governing functions of the people. If power is to be transferred from the people to governments and corporations, it is necessary to reduce the powers of lawyers and juries.

A New York Times column penned by Adam Cohen highlights the harsh consequences of alleged reform. It was covered in this blog a few days ago (click here). It told the tale of Jack Cline, a leukemia sufferer who is unable to sue for his affliction, thanks to oddities in Alabama law. Cline, seeking to hold companies responsible for his exposure to benzene, was denied that opportunity by the state’s Supreme Court, which found that there was never a valid time for him to sue.

“If he had sued when he was exposed to the benzene, it would have been too early,” wrote Cohen. “Alabama law requires people exposed to dangerous chemicals to wait until a ‘manifest’ injury develops. But when his leukemia developed years later, it was too late. Alabama’s statute of limitations requires that suits be brought within two years of exposure.” Cohen called the decision “a ruling that would have done Kafka proud.”

Cline, who later persuaded the reputedly business-friendly court to re-hear his case, was turned away again, this time by a 4-3 vote. He is seen as the latest victim of tort reform.

I can cite many more examples like this. For starters, read Defending Trial Lawyers, Sort Of. The article calls for balance, recognizing that trial lawyers play a critical role to play in promoting health and safety and policing corporate America. Next, try reading the Center for Justice & Democracy’s book Lifesavers: Guide to Lawsuits that Protect us All. This is an extensive compilation of cases and lawsuits that have led to major safety improvements.

Calls for tort reform are rarely made with the noblest intentions. Instead, it is business leaders with financial considerations in mind that are calling for change. For example, many of the changes to medical malpractice laws were based on the notion that high insurance premiums were driving away doctors. And we were told that tort reform would slash health insurance costs. Instead, as a Public Citizen report entitled The Great Medical Malpractice Hoax detailed, the costs of medical malpractice were always overblown by “tort reform” lobbyists.  In addition, and as a 2005 Economic Policy Institute paper detailed, medical malpractice law changes promised reduced health care costs, but continue to rise across the country. In fact, Texas was a leader in slashing injured patient rights, yet it remains the state with the highest number of uninsured in the country with family health insurance policy rates rising at a rate nearly three times faster than wages and inflation.

The only thing that has changed in the wake of “tort reform” are escalating corporate profits at the expense of consumer and workers’ pocketbooks — a triumph of using lobbying power to rob from working families to benefit the wealthy.

What we are seeing today, and as highlighted in the BusinessWeek article, is another cycle of historical (and hysterical) lawyer bashing. In seventeenth century England, Oliver Cromwell, in an effort to thwart individual freedoms, decreed that no more than three barristers could congregate outside of court. He recognized that the greatest threat to his own tyrannical dictates was the collective commitment of the London Society of Barristers to the principles of freedom expressed in the Magna Carta.

In eighteenth century France, the Revolution altered the political face of the world by moving the focus of government from the rights of royalty, tyrants, and dictators to the rights of individuals. Three major political principles emerged–liberty, equality, and fraternity. From these evolved the social and political systems we know today as democracy, socialism, and communism. Only one of these, democracy, granted the individual freedoms now under attack.

In twentieth century Europe, Adolf Hitler, the quintessential despot, asserted “I shall not rest until every German sees that it is a shameful thing to be a lawyer.” In the entire history of this planet, individual rights were never more threatened. Hitler’s mantle of destroying lawyers as a predicate to destroying rights of individuals is carried forward today by a carefully calculated campaign of libelous tyranny against lawyers and the rights of American citizens.

The concept of silencing lawyers by those who seek to subjugate freedom of individuals has been attempted for centuries but has been successfully resisted in America by strong willed citizens represented by the legions of lawyers who have successfully preserved and protected the Constitution and Bill of Rights against such attacks. The efforts by today’s tyrants and despots to contain justice and trample individual rights must be stopped.

Without lawsuits, the Ford Pinto would continue to kill, cigarettes would still be “what the doctor ordered,” patients would be at the mercy of doctors and hospitals, and individuals would never get their day in court. The jury trial is the only opportunity for the people to enter a corporate boardroom and tell a Chief Executive Officer to stop hurting us. Indeed, the perpetuation of freedom is inextricably interwoven with our continued protection of individual rights.