Who wants some tort reform?

I was writing up the negligence explanation section of my website while watching television and a typical commercial for a personal injury lawyer appeared. I don’t know about other attorneys, but these commercials really bother me. I understand the need for attorney advertising, I advertise through several different mediums myself. I understand the need to tell potential clients of their rights, as many may be unaware. But what I can’t understand is why any lawyer or law firm would put out the same, tired and overused commercial that is routinely mocked and paints them an out of touch light. To me the message these commercials communicate would be akin to walking into a law office to find out that time had stood still since 1988. The lawyers in the office didn’t have computers, didn’t know what the internet was and had long ago stopped being interested in bettering themselves as attorneys and staying on top of their game. Now clearly this may not be true, but based on their choice of advertising, it’s exactly what I would think as a potential client.


But the damage these commercials do goes far beyond just the attorneys making these ads. Any lawyers fighting for the individual rights of people who have been injured are routinely clumped in with these attorneys, which then makes all personal injury attorneys a target for politicians and lobbyists, with many seeking to paint them as greedy and the cause for all sorts of economic damage. These arguments fall into the category of tort reform.


Tort reform is a political movement, mainly conservatives and pro-business parties of society, that seeks to make it more difficult for injured people to sue in civil court. The movement also seeks to pass legislation to put “caps” on jury awards or to limit the power of judges and juries to make decisions in tort cases. The justification for tort reform is normally based on the economic impact of such lawsuits. Many who seek tort reform think that these laws are essential to stopping frivolous lawsuits.


The frivolous lawsuit argument is flawed however. First understand that tort lawsuits make up less than 10% of all lawsuits filed in civil courts around the country. Further, over the past 15 years, tort lawsuit filings have seen a more than 20% decline. Even more important the types of  reform that most Tort reformers are seeking have little to do with frivolous lawsuits. The damage caps and other measures apply to all lawsuits and not just ones that have deemed frivolous.


Moreover, it’s actually difficult to bring a lawsuit, especially considering that judges have the ability to dismiss any lawsuits they deem frivolous and will sanction (“fine”) lawyers for bringing such a case. Even more important, most law firms can’t afford to and won’t take frivolous cases.


Tort reform is more complex than just the frivolous lawsuit claims. Many people also believe that the lawsuits that award huge damages make everything more expensive for everyone and therefore hurt the country. Well as most people may be aware, the damages that are awarded in almost all tort cases are paid for by an insurance policy that covers these lawsuits. Now most people think that insurance costs would fall greatly if these damage awards were limited, everyone would save money on their insurance rates, however this too would be incorrect.


Insurance companies make their profits off the investment of their premiums. Insurance Industry experts admit freely that an insurance companies profits are to blame for the sharp ups and downs in insurance rates and not the jury verdicts which tort reformers are so quick to blame. This relationship dynamic holds true for health insurance premiums as well. The Congressional Budget Office found that if you enacted the entire array of all tort reforms, even extreme tort reforms which would prevent many legitimate cases from going forward, the savings would only be 0.5% of all health care costs.


The point of all this is to open eyes. Personal injury law is a tool for the injured to be compensated for their injury. The possibility of a lawsuit deters reckless and unsafe actors from repeating their unreasonable actions or misconduct and gives an economic incentive for companies to become and maintain safe operations. The weakening of liability or inaction by injured persons doesn’t provide the positive economic impact that is promised by those seeking tort reform (see this study for specifics: http://www.epi.org/publications/entry/bp157/)


So when you see those commercials on television, the ones that feature the old-fashioned personal injury lawyer who seems to be “chasing ambulances,” don’t let that section of our profession mislead you about the importance of tort law. The law is here to protect individuals, to compensate those who are injured and to make sure that companies will have to answer for their unreasonable actions and misconduct.


Note: Many of the facts for this post were taken from the Center for Justice and Democracy’s website: http://www.centerjd.org – Visit there to learn more about tort reform and other legal issues


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