“Tort Reform” Sounds Good, Smells Bad

-- Written by Robert W. Munley

The term "tort reform" is a euphonious lie. It is a focus group-tested phrase developed by right-wing think tanks to persuade Americans into sacrificing one of their most sacred constitutional rights - the right to a jury trial.

Political wordsmiths spend a lot of time inventing terms - "death tax," "tax-and-spend liberal" or "coalition of the willing" - to sway public opinion for or against a particular group or point of view. "Tort reform" is meant to make people think there is something wrong with our tort system, which compensates people for injuries caused by someone else's wrongdoing. The lexicon of "tort reform" is replete with slanted terms - "jackpot justice," "frivolous lawsuits," and "greedy trial lawyers," to name a few.

"Tort reform" is a vicious, full frontal assault by big business on the rights of injured people. It is an attempt to reverse 150 years of legal progress and bring us back to a time when the courts favored the Rockefellers and Carnegies, and placed the cost of accidental injury on the backs of victims. "Tort reformers" want to take us back to a time when the social purpose of the tort system -- the prevention of accident and injury -- was prohibited from being carried out in the courtroom.

When I came to the bar in 1959, there were a whole series of immunities, bars, evidentiary rules and canons of ethics that prevented injured people from having their day in court. These roadblocks originated around 1840 with the rise of the Industrial Revolution. At that time, the courts recognized the natural tension between the litigious nature of Americans and our burgeoning system of free enterprise. So, they set out to help big business by preventing injured people from suing.

For instance, you couldn't sue the government because of "sovereign immunity." Certain charitable institutions were granted immunity from lawsuits.

The law of "privity," which meant you had to have direct contact with the party you were suing, effectively granted immunity to manufacturers of defective products. If you bought a car, and it blew up and killed your family, you couldn't sue anyone, unless you could prove it was the dealer's fault.

Until the 1960s, there was no uninsured motorist coverage to protect you in case you were hit by someone with no auto insurance. Then, in the 1970s, we added underinsured motorist coverage in case someone with too little insurance hit and injured you. Even with all of that insurance, if you and your wife were in a car accident and you were at fault, she couldn't recover any compensation from your insurance company because of "spousal immunity." You would have to bear the financial burden of your wife's recovery.

A lawsuit on behalf of an infant had to be brought within two years after birth, regardless of the circumstances; wrongful death suits had to be rifled within 12 months, before enough investigation could be done; and recoveries that included loss of future income had to be reduced to present worth. The deck was stacked against the average person.

But with the rise of the consumer movement in the 1960s, the courts recognized the injustice of making victims bear the cost of their injuries. The great changes in liability law that ensued came about because capable and dedicated trial lawyers recognized that the law is never settled until it is right and it is never right until it is just.

Today's "tort reformers" want to return us to the late 19th and early 20th century. President Bush wants people to believe that trial lawyers are making it hard for businesses to make a buck. That's not true. We're perpetuating the idea that, if this is a country of free enterprise, it is also a country of individual rights. As trial lawyers, it is our sacred duty to protect the people against their government, against the entrenched few, and to give them the opportunity to have justice serve them.

Any system that places the burden of accident and injury upon the backs of the injured, and allows the parties who are negligent to go free, is not a system of justice at all.