On the “Hot” Issue of Tort Reform

Few topics stir the passions of justice-minded lawyers these days, with the exception of disparity in global living conditions, as much as tort reform.  There are two sides to the argument, of course.  According to the pro-side, lawsuits are a major drag on the economy and are frivolous and unwarranted.

The civil justice systems of common law should reduce claims, goes that school of thought. (In particular, we’re talking about personal injury claims.)

On the con-side, we hear that these issues are a smoke screen meant to obfuscate the fact that tort reform, as sought, would operate mainly as what has been termed “corporate welfare”.

Recently, HBO aired “Hot Coffee”, a documentary which presented a journalistic dissection of tort reform. According to a review by “The Chicago Injury Lawyer” law blog, the thrust of the documentary, as self-described, was to examine how the “principles behind tort reform… ‘threaten[ed] to restrict the rights of everyday citizens and undermine the civil justice system.”  (The film was directed and produced by a former public interest lawyer.)   According to the blog, the political tactics involved in several high-profile cases.

One case which went to trial, known as the eponymous “Hot Coffee” case, was found,  by men and women on the street, to be “egregious” .  The jury had awarded the plaintiff in excess of $2 million dollars for spilling overly hot coffee on herself.  However, some opinion-givers seemed to change their tune when they were shown graphic photos of the plaintiff’s damaged pelvic area.

In demonstrating what the filmmaker tried to show was the indisputable rectitude of awarding damages to such deserving plaintiffs, the blog explains that “Hot Coffee” set out to expose “Corporate America’s manipulation of the public to think that ‘freeloaders’ have flooded the civil justice system and that the majority of civil lawsuits are frivolous – until, that is, they have been wronged and their access to the civil court system is restricted.”

At the other end of the spectrum, we read in Point of Law that not all tort reform should be written off.  The author mentions a per-accident cap law…another bone of contention among those who favor tort reform…which, as in the case of the Amtrak Reform and Accountability Act, means that only up to a certain amount of damages may be awarded, no matter the amount  a judge may decide to award.

The author contends that “The policy debates today are not about per-accident caps or economics damages caps. So it’s especially appalling to try to smear legitimate tort reforms that are good public policy with a per-accident cap law—the same dishonesty that the movie ‘Hot Coffee’ engages in.”

One of the Point of Law author’s arguments is that “the real reason [the cap] is not enough [is that] the trial-lawyer cartel is almost certainly charging the full 40% contingency fee in this case.”   To read more, go here: http://www.pointoflaw.com/     To learn the basics about tort reform, go here: http://en.wikipedia.org/wiki/Tort_reform



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