Cyrus Dugger

Launch of Tort Deform: The Civil Justice Defense Blog.

Welcome to the launch of Tort Deform: The Civil Justice Defense Blog. This blog is being launched in order to offer an alternative, and we believe, more accurate analysis of the state of our civil justice system than that presently provided by the majority of legal commentary blogs.

Over the last several decades, a relentless and more or less successful campaign has been waged by a collection of interests identifiable as the tort "reform" movement, aimed at closing the courthouse door to civil litigants as much as possible. This group strives to make it as difficult as possible for victims of corporate or other misconduct to sue and hold accountable in court those who harm them. Even more detrimentally, this same tort "reform" group has succeeded in shaping and leading important national narratives about the law and lawyers. Now, more than ever before in recent history, lawyers, lawsuits, and an overly litigious society are blamed for everything from the rising costs of health care to the state of the economy.

This blog is being launched to right this imbalance, and to affirmatively engage the tort "reform" movement's ideas in a popular medium that is accessible to lawyers and non-lawyers alike.

The myths:

Question: Why are medical insurance premiums costs so high?
Answer: Lawyers.

Question: Why can't I get a good doctor in my community?
Answer: Lawyers.

Question: Why isn't the economy in my state improving?
Answer: Lawyers.

Question: Why is American culture disintegrating?
Answers: Lawyers.

Question: Why did my wife leave me?
Answer: Lawyers.

Indeed, lawyers have become the most universally accepted blameworthy group. Although being a lawyer myself I can attest to the fact that there are a lot of very disagreeable people in my profession, I can say that there are not enough of them, and they are not disagreeable enough, to be blamed for all of society's ills.

What does this dynamic leave us with? In short what we have is one of the most ironic and unfortunate public policy parodies of our time. The very same large corporations that the American public is wary of in the wake of recent corporate scandals have somehow convinced us that the biggest threat to America and Americans are the lawyers who most often sue these corporations. The very same corporations which are most often brought to court for violations of our nation's laws, have convinced us that the lawyers who rightfully bring them there, often on behalf of thousands of mistreated Americans, are somehow 'bad.'

This identification of lawyers with all things bad did not just happen organically. Let us not forget that lawyers fighting for civil rights helped push through important changes in American society like Brown v. Board of Education. It is not as if lawyers were always seen as "bad" (unless of course you opposed national integration of our nation's schools), in that lawyers have fought for and secured some of our most treasured rights.

Instead, the message of lawyers as "bad" has been carefully nurtured through a consistent and powerful communications campaign funded by corporate interests. Moreover, in the ongoing battle of words and ideas between different sides of this "tort" debate, the tort "reform" movement has been far more accessible and successful in communicating its message. As William Haltom and Michael McCann describe in their recent book "Distorting the Law,"

"Legal professional and social scientists tended to publish their challenges to the tort reform movement in law reviews, professional journals, and other esoteric scholarly venues that few citizens or policy-makers read. By contrast, populist tort reformers, although often writing for targeted audiences, managed to find much more popular outlets for their narratives."

Thus, the success of the communications campaign of the "tort reform" movement is not just superior financial resources (resulting from corporate sponsorship), but the use of more appropriate communications tools. The intention of this blog is to tip the balance in the favor of proponents of a robust tort system, and to do so in a way that's accessible to lawyers and non-lawyers alike.

If we truly succeed, this blog will also be interesting to read. Part of this appeal will likely come from the blog's ability to inform Americans of their civil rights, as well as to advocate for the creation of mechanisms and procedures that allow more Americans to gain access to the courts. This educational element is an important goal separate and apart from a discussion about "tort reform."

More pointedly, as this blog's discussion progresses, I think that it will become increasingly clear that for Americans to be equal under the law and to fully realize our civil rights, we all must be entitled to something called "civil Gideon." Civil Gideon is the legal right to representation in important civil proceedings such as eviction proceedings in housing court. At the end of the day it is this deeper failing of our current civil justice system that is most in need of reform.

We can't say how excited we are to begin this conversation with you, as well as the rest of the nation. And we wholeheartedly invite you to participate in a dialogue with our four primary contributors, and our more than twenty guest contributors as we begin this conversation with America.

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Posted at 6:14 PM, Sep 11, 2006 in
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It seems to me that an important success of the tort reform movement is that it has been able to connect huge liability breaks for corporations with the plight of the average American. For some reason, many believe that when corporations are taken to court and have to pay for creating a dangerous product or carelessly hurting individuals, this same economic burden is also placed onto the shoulders of average citizens. Civil cases against corporations, many have been led to believe, drain the bank accounts of the middle class in the form of huge insurance premiums, etc.

This myth is in desperate need of dismantling, which is why I'm so excited to see this blog. The work of connecting the damage that tort reform will do to the average American - in the form of limiting access to the courts - needs to be done.

Posted by: T. Milner | September 6, 2006 1:27 PM

Not only do lawyers not contribute to the high cost of health care. In fact, the high cost of health care contributes to the expense of medical tort litigation.

Canada has virtually the same legal system as the US. But they have far fewer medical malpractice and tort cases in their court system, and the damage awards for the cases that do get into the system are much lower than those in US cases. Why? BECAUSE THE PLAINTIFF'S MEDICAL EXPENSES ARE NOT AN ISSUE. They are already paid by the national health care system.

In the US, being a victim of malpractice or personal injury can make a person uninsurable for life, at least for anything connected to the injury. So it is crucial to be able to recover the costs of health care from the defendant.

The "experts" are always glad to tell us how much of a tort damage award goes into the lawyer's pocket (a large portion of which, BTW, is actually for the expenses of litigation, such as expert witnesses and depositions.) But a very large proportion goes right back into the health care system, at the inflated rates Americans pay. The "experts" have their case backwards.

Posted by: Marian H. Neudel (Esq.) | September 12, 2006 4:29 PM

T Milner: That's what we're here for!

Posted by: Cyrus Dugger | September 12, 2006 5:11 PM

Marian Neudel,

Thanks for your observations. Where can our readers get more information on comparative experiences of litigation and healthcare?

Also in your view, if your reasoning is correct, what does this mean for the chances of getting universal healthcare in the United States?

Shouldn't medical malpractice insurers have been pushing for this universal medical insurance themselves.

Where can our readers get more information supporting your perspective?

Thanks for your contribution to this important conversation.

Posted by: Cyrus Dugger | September 12, 2006 5:36 PM