Kia Franklin

In Tort Reform Debate, the Real Issue Is…

In the tort "reform" debate, the real issue is jurors' rights. That's according to John Vail, Vice President and Senior Litigation Counsel at the Center for Constitutional Litigation in Washington. Consider this "recommended reading." Here's an excerpt from his recent article in The National Law Journal:

The debate about tort reform is largely cast in terms of corporations versus trial lawyers, so it fails to capture what is really at issue: Are citizens in a democracy entitled to make decisions, or must they defer to elites at every turn?

It is unusual today to talk about the right to sit on a jury as one of the fundamental rights Americans possess, at least as important as the right to vote, but the framers were wholly comfortable with the assertion, and Lincoln described the jury right as the more important one.

And history makes clear that the right was equally valued in civil cases, in which the people stand between the aggrieved and the asserted doer of wrong, as in criminal cases, in which the people stand between the state and the accused.

We continue to value the jury in the criminal context, but we belittle it in the civil context. Why? Even if criminal defendants were dissatisfied with the jury system, they do not have at their disposal the political and communications resources available to corporate tort defendants.

In a concerted effort during the past several decades, corporate tort defendants have bombarded the media with stories about the assertedly grave injustices they suffer at the hands of scheming plaintiffs aided by greedy trial lawyers...Read the Full Article Here

Mr. Vail continues the article by exposing the power struggle that is going on just below the surface of the tort deform debate. He argues much more articulately than I can, something quite similar to what I argued in a recent comment thread debate--that while the trial lawyers vs. corporations battle is quite interesting, what's really important and what's really at stake are people's legal rights, including our right to participate in a democracy rather than just be told that we live in one.

The jury trial thing--both the right to participate in one, and the right to have one if you've been injured-- is an aspect of a larger struggle against unchecked corporate power. It's part of a struggle to reclaim the power of individuals, of regular people, to have a role in fighting for a more just society. And to preserve that role as it is guaranteed through our civil legal system.

The article is a good read and it really gets to the heart of the tort "reform" debate.

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Posted at 7:17 AM, Feb 20, 2008 in Civil Justice | Debunking Tort "Reform"
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Nice piece of fiction you cited

The idea of "juror rights" would have greater validity IF juries were indeed randomly selected. As it is, the concept of a "jury of one's peers" is a joke

Unfortunately, by the whole jury process is thoroughly polluted by the voir dire process, especially preemptory challenges, which virtually guarantee that a civil gets a jury of anything but his/her peers. The only time successful business people ever seem to make it onto a jury is when they are self-employed so that they face the pressure of losing money while serving on a jury.

I'm not sure exactly what a jury of my peers would be but it wouldn't be 12 people with a high school education or less, half of whom barely speak English. This, however, is the typical composition of a civil jury! I wouldn't object to this sort of jury composition (occasionally) if this truly were random jury, but instead it is a joint effort by defense and (mostly) plaintiff attorneys to "dumb down" the jury.

Posted by: Paul W Dennis | February 19, 2008 8:59 PM

I think Paul hit an important point. Is it really a jury of peers, for that matter what is a peer? We have complex issues that our tort sytem allows to be determined by those who opposing attorneys feel can be the most swayed. For this reason they try to eliminate those with advanced education or any knowledge of the field that the case is in. A good example would be a patient that is septic in the hospital. We get rid of everybody who knows anything about medicine, limit all decisions to those with a 5th grade education, pick a small number who couldn't figure out how to get out of the decision and them give them a complex list of medications and medical instruments and tell them to go at it. There is one caveat, we get experts with different opinios to tell them what to do.

Would you rather have a team of experienced doctors investigate the case, try to figure out what is going on and then have them procede?

It is all about what you call peers.

Posted by: throckmorton | February 20, 2008 1:23 PM

Here in Texas, George Bush and his cronies, Ken Lay(of Enron fame), Karl Rove and Governor Perry to name a few pushed through the Tort laws. The tort laws are, as you stated meant to take the decision making away from the populace and place it into the hands of the elite. What I have always had a problwm with is where does George Bush get off ever thinking that he, of all people, of the elite? My God, the man is nothing more than blundering, alcoholic idiot!I find it hard to be able to place that sort of rabble among the elitist ranks.
I have found myself having to stand by and watch as my fiance' is slowly dying as a result of the mis-diagnosis on the part of four charlatans that assume to call themselves doctors. Due to the Tort "Reform" that has taken place in Texas all that has been accomplished is the attraction of nothing more than "Snake Oil Salesman" from other parts of the U.S. who would be brought to justice in their home states, but now due to the wonderful "Tort Reform" championed by Messers Bush and friends, they are free to practice their "sorcery" in Texas without fear of reprisal...
I am watching my fiance' die a slow and agonizing death, and my hands are tied because I am unable to bring these idiots to justice. I have made several appeals to the "Legal System" here in this "great" state only to be told that the expense involved would be so prohibative that I would be totally drained financially by the time any conclusion were reached....the real intention of the "Tort Reform" obviously....
I have always been a "fighter" and a "Survivor" of sorts and I refuse to allow mere dithering idiots like George Bush to have any advantage over me. I have made up my mind that if I cannot find satisfaction through the normal legal channels, than I will have to take matters into my own hands... I have always been a believer in the saying "Where there is a will, there is a way". This than will become rather inconvienent for the four "doctors" in question to say the least. The result will be that they will not have any desire to attempt to practice medicine anywhere anymore....psychological persuasion can be utter hell sometimes!!!

Posted by: Jack Strassner | February 23, 2008 1:20 PM

I hope someone is reporting Strassner to the appropriate authorities, and that DMI doesn't encourage the sort of threats of violence he is making (which is a natural consequence of the hate speech DMI prints about the issue). (Ironically, under the wide-open deformed liability system Tort Deform promotes, DMI could be liable for their failure to warn Strassner's doctors of his threats if he follows through on them.)

Posted by: Disturbed | February 27, 2008 9:38 PM

Arbitrations Atrocites slide right on by...

Articles on the housing debacle seem to purposely leave out, ignore and not mention some of the main reasons for the "sub prime crisis" . Reasons which led to the lenders' chaos. The banks, the hedge funds and the builders cry out for help like something out of Danes' inferno. All the while taking their bonus checks, of our hard money and stuffing them along side what they have already gleaned from us ...with their thrown up, defective housing. Now since the gravy train has derailed they cry out," help us we wanted more.".Yet the cries and wishes of the middle class go unheard.. It is doubly diabolical that we the tax payer should once again be forced to pay the perpetrators. The government thinks they should help the people who cheated and robbed us of our homes. We hear that consumer confidence is down, and the government seems to be baffled as to the why.. Greed, of course, is at the helm of this perfect storm, prefect for everyone except the once, homeowing tax payer.

The general population has been preyed upon by the greed of shoddy construction, and further destroyed by arbitration clauses which hide the builders role in this housing debacle. I am sickened by the articles on arbitration all written by people who have not endured this diabolical process.
My husband and I have been there. And it is not fair or cheaper, but some times you can get screwed a lot faster, they even have a name for it, it is called," fast track arbitration". As we are dragged behind these closed doors, many of us who are not silenced by gag orders,( carefully termed secrecy agreements) tell of the unbelievable goings on . Most of these so called secrecy agreements conveniently cover up what has occurred inside. Inside, where the rules of law no longer apply, where fraud and perjury are standard fare and the arbitrators turn a blind eye because of...greed. The big builder is their constant meal ticket. We the home owner will never financially recover to be subjected again to this incestuous farce. A farce that is touted as being so good for the consumer they made it mandatory. If in fact this privatization of the justice system is so wonderful why is it mandatory?
Arbitration is a sin against the constitution and the general public. One way to get us out of this crisis is to get the arbitration companies to pony up their unbelievable earnings... after all they tout them selves as non -profit facilitator. Non Profit? We know how much they profited off us.Then check the bank accounts of these lenders and builders and make me feel sorry for them. Sorry they have made only 3 million this year instead of the 25 million the year before. These insidous leaches have made millions off us. The builders and lenders are screaming now because their greed became so insasable they have driven this county into a recession. And once again we the people are screwed.
If you would like more on this crisis please google my name Jordan Fogal an read my testimony for the congressional hearing... on the effects of arbitration on the consumer. You may also go to or and remember the home you save most likely will be your own.

Posted by: Jordan Fogal | April 4, 2008 4:51 PM

Plaintff lawyers should pay attention to the comments of Paul & Throckmorton. It doesn't matter if they're right or not--their perception and opinions are commonly held. You can show those jurors data, studies, etc. and they will not change their mind. Their "data" is unverified, anecdotal regurgitation of Fox (Faux) News, Limbaugh, Boortz, Hannity, Coulter, and others. They view the civil justice system as fatally flawed. Those folks only change their mind when they find themselves needing to file a lawsuit.

When a juror has a "victim" mentality like that, he/she assumes the injury plaintiff is a liar and he/she believes the plaintiff is trying to pull one over his eyes and he/she is not going to get fooled again. That juror also, oddly, sees an injury plaintiff (who is standing up and fighting to protect his legal rights, getting ridiculed and raked through the coals in the process) as playing the victim--when in fact the opposite is true.

Posted by: Allen Rogers | April 24, 2008 1:21 PM

About the State Farm Insurance Company's evidence of lie and deceit

My Mother who has recently passed away on Feb. 6th, 2008 was lied to and misinformed about her 3 policys one for herself, one for myself and one for my son. At the time she insured her policy for my son her agent Mr. Sherman Chan informed her and myself that because she started my sons policy at the time that she did that once he turned the age of 21 years old that she would no longer have to pay his preimum because his policy would in turn began to pay for itself. I witnessed this conversation and I know for a fact that she would not have gotten the other two policy on me and herself because it was so important for her to know that my son was insured on a policy but when he turned 18 years of age Mr. Sherman Chan lied and and told Mrs. Ora Dee Bell that he never told her that my son would be taken care of by his own premiums. There was a large lawsuit that my mother was informed to join because she was lied to decietied and misinformed. This is the reason why I Michelle Time is contacting this blog. My Mother name Ora Dee Bell policy number LF-0941-1406
for Marquiest L. Murphy
Agent Sherman Chan 916-422-1550 # 1215412760

Ora Dee Bell
C/O Michelle Times
policy number 0079-2965-02
Agent Sherman Chan 916-422-1550 #1215412760

In claim of a check for 25.70 issued on December 21, 1994 as a premium refund on behalf of state farm payment plan policy number 0079=2965-02
attn: Michele Ramirez Accounting Department 707-588-4055

Michelle Times 916-254-0406

My mother has since passed away on Feb 6, 2008 and I am writing on her behalf
Thank you and please respond

Posted by: Michelle Times | June 1, 2008 12:12 AM

this is really an interesting discussion, and informative too!

Posted by: home builder | August 30, 2008 12:35 AM

Dr. T and Paul: The jury is the sole real friend of the doctor in court. The defense attorney must go to trial to break even on the case, given the low pay. Try to ask him to attack the plaintiff lawyers in motions or in disciplinary reporting. The plaintiff lawyer is the source of his job, not the defendant. If you fire the defense lawyer, he can replace the client in a minute. If you deter the plaintiff lawyer, the defense lawyer is unemployed and homeless. After the case, I know they get together and drink to the stupidity of the public.

In over 70% of cases jurors find for the defense. If you have ever sat on a committee with a doctor, you would never, ever, ever, want a doctor making any judgment on the merits of a case. They are 10 times worse than any lawyer in parsing for the tiniest infraction. They are nuts. And lawyers on such committees have tried to restrain the doctors' picayune, idiotic and endless arguing, so that people could go home.

Posted by: Supremacy Claus | August 30, 2008 10:19 AM

Allen: You believe in juries, in access to the court for the victim of another's carelessness. I have agreed with you in the prior comment.

Will you support ending all self-dealt immunities of the lawyer and judge, and the privity obstacle to a legal malpractice claim by a lawyer injured adverse third party, so that victims of their carelessness may have their day before a jury of their peers?

If you do not, shut your dirtbag, land pirate mouth, you vile hypocrite.

Posted by: Supremacy Claus | August 30, 2008 10:31 AM

I am going to guess. Jack is a Democrat. He is quite typical.

Did Jack mean "fiance" or "fiancee"? If he meant "fiance," that makes him a perfect Democrat.

Posted by: Supremacy Claus | August 30, 2008 10:37 AM

Tort Reform in Texas has basically done no more than give doctors a license to practice less than quality medicine and to kill you with impunity while serving their own bottom line. There is no need to monitor or check dosages of medication. It is fine to kill the patient if you are killing an infection. Urgent calls do not need to be returned and of course, no doctor will testify or speak ill of another doctor unless it's HIS or HER family that has been injured by negligence, lack of care or concern, basic human intelligence and/or not trying to cram as many people in to their day as humanly possible. My son has almost died 5 times in the last 4 years due to the incompetence or gross negligence of doctors in Houston at either the "best" places or a doctor that was highly recommended. When you take away all accountability then you take away the incentive of even many CARING physicians to do the best that they can in any given circumstance. As in any trial, better that a guilty man go free than an innocent one go to prison. Better that doctors are held accountable for negligence and avoidable "mistakes" resulting in death or grevious injury than we get the dregs of other states due to low malpractice premiums. Just search on line and find people in TEXAS as well as other states where Tort Reform has been enacted that were originally "for it" until they or someone in their family was injured through gross negligence or uncaring and frivilous actions on the part of a doctor or other healthcare professional. It's absolutely amazing what your opinion of Tort Reform is when you become the "victim". All the regret in the world isn't helping Texas. Who cares if some lawyers get rich if doctors are held accountable for deaths and horrible consequences that could have been EASILY prevented? The special interest groups have, as usual, prevailed in Texas and the TLA is NOT the one I'm referring to. Don't for one moment assume you are "safe" just because you're in Texas with access to some of the best doctors. Unless you are George Bush or someone equally "connected", wealth, intelligence and whatever else you possess may not be enough to save you. I love Texas, but what has happened in our State and CONTINUES to happen on a daily basis due to Tort Reform is a crime. Judges can toss out "frivilous" lawsuits. You expect your mechanic to fix your car correctly or you go to a different one. What if they were all the same? Medicine is not an exact Science. You will here that over and over. But COMPETENCY and CARING and basic standards of care have nothing to do with Science. Hope it's not you or someone in your family the next time the "best doctor in Houston" for whatever is in a hurry. Just read the regret all across America in States with Tort Reform and don't assume that wealth and intelligence can protect you. Even if you DO assume that, think what it must be like for those without wealth and maybe not as much education to "help" protect themselves or their loved ones from the medical climate we now have in Texas. Tort Reform is a blight on our State and should be repealed.

Posted by: Sharon Chevalier | January 30, 2009 1:14 PM

To Mr. Disturbed... your name obviously fits you perfectly! All I have to say is... just wait until you have a loved one dying at the hands of charlatans like the idiots that mis-diagnosed my fiance'...and that is fiance', Mr Claus..that is the way we spell it here in the literacy class.. And NO.. I happen to be a dyed in the wool Independent, thank you very much! Man, you all reall are screwed up!
Now, as I was saying... Mr. Disturbed... Let's see how you feel after one of these idiotic so called "Doctors" mis-diagnoses one of your loved ones, just how you will feel! Don't give me your trite garbage about notifying any authorities! I haven't done anything illegal.. but your beloved they milk the insurance companies and bilk their patients of every penny they can get..oh, they are just perfectly great, aren't they! You pin headed jerk! Go back under the rock from which you crawled out of!

Posted by: Jack Strassner | March 24, 2009 5:02 AM

To Mr. Disturbed... your name obviously fits you perfectly! All I have to say is... just wait until you have a loved one dying at the hands of charlatans like the idiots that mis-diagnosed my fiance'...and that is fiance', Mr Claus..that is the way we spell it here in the literacy class.. And NO.. I happen to be a dyed in the wool Independent, thank you very much! Man, you all are really screwed up!
Now, as I was saying... Mr. Disturbed... Let's see how you feel after one of these idiotic so called "Doctors" mis-diagnoses one of your loved ones, just how you will feel! Don't give me your trite garbage about notifying any authorities! I haven't done anything illegal.. but your beloved they milk the insurance companies and bilk their patients of every penny they can get..oh, they are just perfectly great, aren't they! You pin headed jerk! Go back under the rock from which you crawled out of!

Posted by: Jack Strassner | March 24, 2009 5:05 AM