I’ve mentioned tort reform before. The reason this keeps coming up is that it is probably one of the five most important internal policies for the United States. The problem is that most people don’t know what tort reform is. Hell, most probably don’t even know what a tort is. A tort is something you do that is wrong and makes you responsible for those actions, but this action is not necessarily illegal. How do we deal with torts? We sue people. Lawsuits are one of the great advancements of English common law. The problem is that as with just about anything involving lawyers the system has been corrupted.
Right now in America we are an obscenely litigious society. We sue over everything. Everything! Spill hot coffee on your lap because you clearly have the intelligence of a turnip. Well that’s McDonald’s fault. Smoke all your life and get lung disease, because you didn’t grasp what has been known since about 1700 that smoking is bad for you. Well that’s the fault of Phillip Morris. You’re fat. McDonald’s fault. Get shot. Gun manufacturer’s fault. Basically if you win a Darwin Award, it’s everybody’s fault except your own. And they should pay. They should pay a lot.
Think I’m exaggerating. Read the warning on your standard clothes iron. It actually says “Do not iron clothes while wearing them.” There is no reason for that to be there unless some idiot not only did that, but then sued because of it. … I also like the warning on some Christmas lights “For indoor and outdoor use only”—I’m torn between asking what other kind of use some idiot who sued found…and being very disturbed by the answer.
You don’t think this has anything to do with you other than the fact that these are the same idiots who are cutting you off in traffic. Well think again. Every one of those multimillion dollar lawsuits has a payout. And with a payout a company loses money. Guess how they get back the money they’ve lost? They raise the cost of what they charge you for their product or services. The estimated cost per person is about $834 in 2008 () and that’s not fully counting personal injury lawsuits costs. You want to know why medical costs are so high…well to a great degree it’s because doctors are sued by people so often. People don’t get better from this or that, or they aren’t diagnosed quickly enough to catch a problem, or something goes wrong during recovery. And so they sue the doctor, the hospital and everyone else involved in your medical treatment. Why because apparently medicine is an exact science where everything always goes perfectly if it weren’t for the doctor’s malicious nature. Oh wait, medicine is about as in-exact a science as you can get as that works it on the single most complex machine known to existence, the human body. Now, yes I will never defend a doctor’s incompetence, depraved indifference, or unquestionable unprofessional behavior (but those do not make up the bulk of medical lawsuits…the bulk of medical lawsuits are ambulance chasers with clients who would probably spill coffee in their laps if you didn’t tell them it was hot).
There are a lot of problems. Most of them have some fairly simple solutions. All these solutions have been and will continue to be opposed by trial lawyers (next to the Teachers Union they’re the most corrupt and influential campaign contributor there is). If the GOP is serious about reform and earning the trust of the America people they have to take an attitude somewhere between “Screw them all” and a line from Shakespeare’s Henry IV (you know which one I mean).
Tort Reform Part 1:
Limits must be placed on pain and suffering awards. Further damages payment must be realistic. If a 50 year old blue collar worker gets injured because of negligence on his employer’s part…he wasn’t going to earn $50 million in his remaining years before retirement. Pay all his medical costs, insurance costs, and lost pay plus maybe 10% to be on the safe side, but no more of these ridiculous sums. A million dollar cap on pain and suffering awards should be more than sufficient if damages payments are all taken care of.
Tort Reform Part 2:
Loser pays the bills.
The fact of the matter is that so many of these ludicrous lawsuits come about because there is no disincentive to not file. You sue McDonald’s for making you fat; the worst that can happen right now for the plaintiff or their soulless attorney is that it is thrown out of court. Thus filing an obscene amount of crazy lawsuits with the same attitude similar to that of seeing if spaghetti is cooked, see what sticks to the wall, is good business for unethical lawyers. Nothing ventured, nothing gained. And the lawyers of these big corporations aren’t opposed to this either. As defending their clients against quacks is the only way to rack up thousands of billable hours. And you and I as consumers get to pay for all those legal fees.
To put an end to this reckless system of litigiousness is put in a simple rule of the loser will have to pay the winner’s legal fees. Thus you’re not going to sue a big company unless you 1) have a slam dunk case or 2) are Don Quixote and believe in your case. Ambulance chasers that bring frivolous lawsuits are under neither category. Yeah is this going to be hard on those few poor people who have legitimate complaints but can’t compete with legal team from the darkest depths of a Grisham novel and end up not only bankrupt, but millions in debt? Yes. But as you’ll have far fewer lawsuits, you’ll have far fewer lawyers in the system. It’s a worthy trade off.
Tort Reform 3:
Judges need to be given more authority to throw out cases.
I don’t know if you need to have a three judge panel go over every perspective case and two have to agree to keep it, or just rewrite the laws of what standard a judge has to hold a case to for a prima fascia burden, but judges need to be throwing out a lot more cases. Let’s be honest here would you take this case: “So let me get this straight, you were told since early age that smoking was addictive, as this is a fact that’s been known for well over a hundred years. Your first reaction to your first cigarette was to hack up a lung. You noticed early on both a need to smoke and that you had less breath. You were warned for the last 50 years that smoking was bad for you. But only recently because you came down with lung cancer did you want to stop. And it’s the cigarette company who’s to blame? Not you, you have no responsibility for this at all. All the conglomerate tobacco, that’s to blame. Did they stick a gun to your head and tell you to smoke?” Would you take that case? I wouldn’t. And whoever the judge (judges?) was who allowed that case to ever get to a jury, let alone a settlement should be disbarred and executed for gross incompetence.
Tort Reform 4:
There needs to be some kind of scoring system put into place. If you’re a lawyer that brings more than 10 frivolous lawsuits in the course of your career, you shouldn’t be allowed to practice law. Now I’ll admit you’ll have to hammer out a pretty clear definition of frivolous as opposed to no chance you can win against the evil law firm held on retainer, but these psycho ambulance chasers need to be put out of business.
Tort Reform 5:
Malicious intent needs to be proved. Raise your hand if you’ve seen commercials looking for anyone who has ever had contact with asbestos. Because apparently it was in high use back when we didn’t realize how dangerous it was. So the companies that made asbestos, without knowing how dangerous it was should all be sued. And that goes for drug companies that create drugs that are designed to help people but eventually they find unexpected side effects that hurt a small group of people because they are to blame for those unintended side effects. Are you kidding me? A lot of companies hide dangerous effects of their products and dump poisons into the environment, sue their asses off, I don’t care. But if a drug company pulls a drug the minute they find out about that side effect, it’s not like they put it on the market to hurt people. They put it on the market to help people (and make a little money) they aren’t to blame for the unforeseen. The problem is that people need to admit that shit happens sometimes and no one is to blame. There are terrible things that happen, doctors made the wrong call in good faith, machine are sometimes lemons even though the manufacturer tries to maintain high quality, things just go wrong. Shit happens. And sometimes no one is to blame. Unless you can legally prove malicious intent or depraved indifference, no one is to blame, and no one should be sued. (You pass this one and watch your medical bill drop like a rock).
I understand that often there is a psychological need to blame someone for the terrible things that happen in life. But as a society we need to grow up and understand that sometimes things just happen.
Tort Reform 6:
Eliminate the practice of contingency payment. A lot of greedy lawyers take cases on contingency, that is, they will get paid a percentage of the settlement in addition to their fees and costs. This basically creates a massive incentive to sue large companies for large settlements and hope they’ll just pay you off quickly so you can move onto your next BS case. Hmm, I wonder, is creating an incentive for frivolous lawsuits a good thing? Let me think…no. It’s about the dumbest idea I can possibly think of. This tied to reform #2. If the loser is going to pay, then you still have an incentive to take on clients who may not be able to pay your bills (you’ll just make sure that they actually have a case). All you have to do is submit a bill for the number of hours at the last hourly price you billed for before that case and the court will make sure you get paid. If losers have to pay, then there is no need for contingency fees. And if there are no more contingency fees than the chief incentive for all these preposterous lawsuits go right out the window.
Now I would love to see all of these passed. But any combination of at least 3 of these being passed will lower costs for businesses and consumers, raise incentives to build and expand businesses, improve the economy, and drive many lawyers to ruin and bankruptcy. Win-win for everyone who has a soul.