TorteDeForm

Andrea Batista Schlesinger

Why are we launching TortDeform.Com: The Civil Justice Defense Blog?

Visit overlawyered.com and pointoflaw.com and then let me know if you figure it out.

There is a line in the sand between the right and the left. It's about the role of government in our lives.

All around us a destructive force is underway. Powerful interests are rewriting the rules to make it as difficult as possible for regular Americans to have access to the courts and to remedy for the damage they suffer because of corporate negligence. In the name of tort "reform," a misnomer suggesting that something is broken that isn't, corporations and their willing legislative accomplices are doing everything possible to perpetuate their ability to harm regular consumers and workers with impunity.

Who cares? Too few.

It isn't as glamorous as many of the "issues" we care about - the death penalty, the environment, poverty - but it embodies the principal that divides us from the Manhattan Institutes of the world: a belief that our government should exist as an equalizing force, not an arm of the wealthiest and most powerful.

The progressive movement has been far too silent on the issue of protecting access to the courts. Even Senator John Edwards, for whom I have enormous respect, too often shied away from defending his job as a trial lawyer by supporting a "mend but don’t end" (God I hate when people say that) approach to our civil justice system.

The conservative right has successfully positioned this issue as being about greedy lawyers suing at any opportunity, with insurance companies as the victims (poor insurance companies absolutely must raise rates because they are being sued so often... despite their record profits and minimal financial impact of the suits). The right has spent years and millions of dollars working on framing this issue to the American people. They wouldn't have bothered if this wasn't important. The civil justice system should be an example of how government can better the lives of people.

The Drum Major Institute for Public Policy (DMI) was founded by lawyers who were advisors to Rev. Dr. Martin Luther King, Jr. We were formed at the nexus between law and the movement for social change. It is this role that we embrace today in launching TortDeform.com.

So check it out and let us know what you think. But be certain of one thing: we can fight every issue, and on every electoral campaign, and we can organize, organize, organize, but if we are silent on the issue of preserving access to our civil justice system, and we become harmed like so many other Americans, we will realize that it is too late for protests and email campaigns because there is no system left to protect us.

Andrea Batista Schlesinger: Author Bio | Other Posts
Posted at 6:06 PM, Sep 11, 2006 in Civil Justice
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Comments

I oppose all tort reform, including the Supreme Court limits on punitive damages.

In furtherance of this view, legislation must be passed ending the self-dealt immunity of the lawyer from accountability to damages done by lawyer carelessness to adverse third parties.

The lawyer claims to have no duty to adverse third parties. However, numerous express duties to adverse third parties are enumerated in the Rules of Conduct, Civil and Criminal Procedure, and Evidence.

This is not loser pays, but loser pays for deviations from professional standards of due care that are per se from the Rules. I oppose the filing of frivolous lawsuits against lawyers. So a certificate of merit must be submitted, signed by lawyering expert in the same specialty.

Posted by: Supremacy Claus | September 17, 2006 8:28 PM

I have submitted the above proposal many times to Overlawyered. Ted has never allowed it to appear.

Ted is hypocritical if he does not want the ordinary law of torts to apply to the lawyer, by the removal of lawyer self-dealt immunity from adverse third parties. He has yet to explain why the lawyer must remain above the ordinary law of torts. No one else, but the lawyer requires contract privity before compensating the victims of lawyer carelessness.

I hope I am wrong. Ted restricts himself to proposals protecting his corporate sponsors, and not the other victims of lawyer carelessness.

Posted by: Supremacy Claus | September 18, 2006 7:25 PM

I could be wrong (as I read on this subjct on several sites), but I beleive Overlawyered has had posts supporting criticizing such immunity (especially as lawyers have so specifically campaignd AGAINST such immunity for doctors).

There is a case for (limited) immunity, in some cases ("a case" meaning that there is reasonable debate on the subject). The strange thing is that lawyers are the only ones who actually get any, which is inconsistent. The arguments that apply to lawyers apply at least as well to doctors, usually better, just for one example.

Posted by: Deoxy | September 19, 2006 12:09 PM

"The conservative right has successfully positioned this issue as being about greedy lawyers suing at any opportunity, with insurance companies as the victims"

As a staunch member (non-professional, non-lawyer) of this "conservative right", I can tell you that you are quite far off the mark.

It's not WHO the victim is that matters. Indeed, insurance companies are sometimes victims and sometimes victimizers in this regard.

What matters is a system that ALLOWS one party to victimize another through the court system. The asbestos litigation is but one example of this broken-ness of the system: many uninjured people drew millions of dollars, while many who actually WERE injured got nothing, in many cases because there was no money left (after the uninjured had taken so much).

Lawsuits where the party that clearly CAUSED the wrong is the one suing the clar victim is another area of ridiculous broken-ness of the system. How about the high-schooler who BROKE INTO the school at night (breaking and entering, and trespassing, too, actually), went to an area where students were forbidden to go even under normal circumstances (the roof) and fell through a skylight, causing grievous injury to himself. Th party in th wrong (the student) not only didn't pay for the damages he caused, but SUED the school and got millions for his terrible injuries... caused by his own actions! In that case, the loser is the SCHOOL and the many other students who go there.

Would (many) corporations benefit from many proposed reforms? SURE! But so would you and me! The system is brokn and needs to be fixed. Injustice is injustice, whether it happens to a poor person or a wealthy corporation.

And in the current system, it happens to both. Regularly.

Posted by: Deoxy | September 19, 2006 12:19 PM

The above commenatry regarding the "robbery case" evidences either an affirmative misrepresentation of that incident or an honest, but incomplete understanding of it.

I willhave to write a post on this issue as I did regarding the similarly misrepresented "McDonald's" case.

Regardless of deoxy's intentions the incomplete description of cases liek the above is a common tactic of the tort "reform" movement. Highligh a case, but not give all the details, and then claim that the system i broken.

Deoxy I'll let you know when it goes up!

Posted by: Cyrus Dugger | September 20, 2006 2:16 AM

"Robbery case"? I assume you were referring to what I said, in which case (if I recall correctly), there was no robbery at all, but rather trespassing, breaking and entering, and intended vandalism.

But really, that doesn't matter. What matters is that the school had told him not to go there. When he went there and subsequently hurt himself, how could that possibly be the school's fault? They TOLD him not to! And they locked it to prevent easy (or legal) access! What more do you want?!?

And really, it applis equally well to any other case of a burglar or othr criminal hurting themselves through their own action. Where do you think you have the right to be climbing on my roof anyway?

It's a case of heads, the criminal wins, tails, the non-criminal loses. And that, like much of what else that goes on in our system, is wrong, whether the criminal is rich or poor, a person or a corporation.

I'd love to see your post on this case. If it's anything like your McDonald's post, it should be fine entertainment (though little else to anyone who bothers to check the facts for themselves).

Posted by: Deoxy | September 21, 2006 10:16 AM

Hi Deoxy,

"Robbery case" was put into quotes for a reason - that's how tort reformers usually frame it - a thief got money for suing the people's home he sued.

The full post will be up for you to checkout - any progress on the workers compensation research you promised us? Did you read the Center for Justice and Democracy report yet?

Do you find anything arguably wrong with the facts of this case in support of a view contrary to your own?

BTW just because to tell children not to do something, usually isn't enough.

The best way to get a child to do something is to tell them not to.

They knew that children would go up there - previous children had actually fallen through the same

This fact is absent from your rather harsh portrayal of fault as to children. As you well know, children are not fully independent in their thinking and actions.


They cannot yet make adult decisions on their own, and any school or facility which deals with them msut take this into account in the level of protections and safety which they create/maintain.

That's why we don't execute juveniles (anymore)under the age of 18 since the Supreme Court decision in Rpoer v Simmons last year.

But I digress... the post will be up and I'll let you know.

Posted by: Cyrus Dugger | September 21, 2006 11:06 AM