Justinian Lane

My Take on the "Tort Wars"

Several others have already mentioned the article in the New York Times about the "tort wars."  Definitely read the whole article, but here's my response to various portions of the article.

“It took guts, bravery and vision to get behind what must have seemed like an insurmountable task — taking on the powerful trial bar,” said Mr. Donohue, the chief executive of the United States Chamber of Commerce. “We have succeeded beyond our expectations.”

That's right - it's an insurmountable task for corporations with revenue in the tens and hundreds of billions of dollars to make a PR attack against the relatively disorganized trial bar.  Climbing Everest pales in comparison.

NEVERTHELESS, there are battles in individual states over judicial campaigns and legislative initiatives. The number of class-action lawsuits filed in 88 federal courts rose 72 percent from 2001 to 2007, partly because of that 2005 law. (Presumably, the number of class actions in state courts has fallen, although this data is hard to come by.) And while a study released in December by Towers Perrin, the consulting firm, found that total “tort costs” fell in 2006, it predicted that costs would rise as a souring economy prompts more lawsuits.

I wonder how many of those lawsuits will be against the rapacious corporations who caused the souring economy by engaging in illegal and unethical conduct?

In Colorado, an initiative to limit lawyers’ fees was answered with a barrage of proposals that would limit executive compensation, cap real estate sales commissions and raise the maximum amount of damages payable as a result of shoddy construction, among other things. All the initiatives were eventually withdrawn.

This was a smart tactic.  We need to learn a lesson from this and use it in the future.

The fight to change tort laws has developed into a big business in itself, with plenty of people invested in keeping the battle going. Neither Mr. Haber nor Mr. Donohue would say flatly that his side was winning. Doing so would make it harder to lure contributions — a point made by people on both sides of the debate.

No surprise here.  If Donohue declares victories, he'd probably have to go and get a real job.  He's got a very substantial interest in peddling fear, as corporate fear of lawsuits is what keeps his six-figure salary flowing.

But the chamber itself, which represents millions of businesses of all sizes, is the biggest spender on the lobbying. In 2006, it spent $72.7 million, according to the Center for Responsive Politics, a nonprofit research group that tracks money in politics. On the trial lawyers’ side, the American Association for Justice spent $8.3 million that year.


 Just wanted to throw together a quick & dirty chart to visually depict the large difference between the Chamber's lobbying efforts and the AAJ's.  Very interesting that the "reformers" argue that the trial lawyers outspend everyone else.  The "reform" lobby's largest organization outspends the largest trial lawyer group by nearly 9 to 1. 

These figures don't include the lobbying by the individual members of each group.  Sure, there are some wealthy trial lawyers out there, but the combined wealth of the Chamber of Commerce membership is easily 10,000 times more than the combined wealth of the AAJ membership.  Trial lawyers cannot possibly hope to outspend the "reform" movement.

They came up with what Mr. Hantler described as a multipronged strategy, involving advertising aimed at voters picking judges and continued lobbying of lawmakers. This “demonstration project,” as Mr. Hantler called it, was successful enough that the Institute for Legal Reform has expanded it over the years. [Didn't Darth Vader call it a "demonstration project" when he used the Death Star to blow up the planet of Alderaan? - JCL]  At the same time, businesses have become more active in state supreme court judicial campaigns and, in the 2006 election cycle, gave twice as much as lawyers did, according to the National Institute on Money in State Politics. (In previous cycles, sometimes companies gave more, sometimes lawyers gave more.)

For years, the "reformers" have claimed trial lawyers have been buying judges.  Now they've outspent judges by two to 1; how many judges did they buy?

To help deliver a pro-business message, advocates have hit upon a ranking system. One list ranks “judicial hellholes,” as compiled by the American Tort Reform Association, and another identifies those states deemed by corporate general counsels to be most and least friendly to businesses. (That list comes from the Chamber of Commerce.)

If O.J. Simpson ranks California vs. Nevada for judicial fairness, would anyone take his study seriously?  It's the same concept.

Corporate executives say they want limits on noneconomic damages in order to reduce unpredictability in jury verdicts.

So they can more easily decide whether to release products that are going to kill people.  Rather than grapple with the moral implications of their decisions, many corporate executives would rather base those decisions on financial implications. 

Although the number of lawsuits that defendants shifted to federal courts rose after the law was passed in 2005, a report released in April by the Federal Judicial Center, a research and education agency created by Congress, found that the number of such shifts has since fallen. On the other hand, the number of class-action suits filed initially in federal courts has risen. And no one has reliable data on the total number of class-action suits filed in state courts.

In other words, there isn't enough data for the "reform" movement to claim there's a class action crisis.  That's what's so nice about propaganda - it doesn't require facts.  In fact, it's usually better without them!

Source: To the Trenches - The Tort War Is Raging On - News Analysis -

As always, comments are welcome.

Justinian Lane: Author Bio | Other Posts
Posted at 10:56 AM, Jun 24, 2008 in In the News
Permalink | Email to Friend



Thanks for your insights. You should write a letter to the editor. Seriously!

This "article" also claims that: "Strikingly absent from debates over who should be able to sue whom, when and for how much is any discussion of the fairest and most effective way to make sure that true victims are appropriately compensated for injuries and that people without authentic injury are not compensated."

First of all this omits one of the other important concerns--that the injurer stops injuring or is fairly and adequately penalized for its actions.

Secondly, it ignores the existence of groups like DMI, who are not trial lawyers, don't do direct advocacy, and whose civil justice work centers around a concern for fairness to ordinary Americans.

Hmmm... maybe these groups are "strikingly absent" because our funding/support doesn't hold a candle to the corporate lobby's network. Just a thought.

Posted by: Kia | June 24, 2008 12:49 PM

What? You mean DMI doesn't spend $80 million a year on this blog?

Posted by: Justinian Lane | June 24, 2008 1:09 PM

Actually spending by groups is difficult to quantify and its impact is more on local elections than on national elections. A significant campaign financing reform would be to require that all campaign financing spent in a race come from within the district(s)being contested. Since this would prove acceptable to neither Democrats nor Republicans, we may as well end the charade of campaign finance reform and simply remove all constraints

For whatever reason, there seem to be more plaintiff attorneys appointed to the bench than corporate defense attorneys and I think that the country would be well served by a more even balance. There clearly are jurisdictions where a civil defendant should expect to get screwed and simply plan on appealing if they hope to get justice. There also are a few (very few) jurisdictions where civil plaintiffs do not get a fair shake. Both situations are intolerable

BTW - who finances the Drum Institute ? (I actually already know the answer but wonder how honest you will be in answering the question)

Posted by: Anonymous | June 24, 2008 6:59 PM

The comment by anonymous (above) is mine

Forget to enter my name before posting

Posted by: Paul W Dennis | June 24, 2008 7:02 PM

Paul, I agree that the campaign finance system is completely broken and something needs to be done. I also agree that plaintiffs and defendants should get a fair shake in every jurisdiction. I disagree with your assertions that (a) plaintiffs lawyers get elected more than defense lawyers, and (b) more jurisdictions are unfriendly to defendants than plaintiffs. Do you have any cites to that info, as I'd love to take a look at it.

Posted by: Justinian Lane | June 25, 2008 9:38 AM

DMI is funded by a variety (over 300) of individuals, foundations, corporations, and unions. If you have specific questions you can go to our website, here.

Posted by: Kia | June 25, 2008 3:35 PM

Kia: How many of the 300 individuals are plaintiff attorneys or plaintiffs? The bias is so extreme, you have the credibility of Stormfront.

Stormfront has more facts in their items.

I am sorry, but I can't help asking what a nice person like you is doing serving such dirtbags?

Posted by: Supremacy Claus | June 26, 2008 1:57 AM

Supremacy, are there any groups you support, or don't think are overly biased?

Posted by: Justinian Lane | June 26, 2008 12:18 PM

SO WELL PUT - WOW! - good for you; we need to stop this, what I call MASS TORT PERVERTED REOFRM EFFORT.

The Vioxx "settlement" is one 'line in the sand"...we have so much proof of how not having proper access to the courts, and that is what happens, really does to real people - the "settlemetn" was/is such a darn shamn, and it is so obvious.....

Dennis Harrison

Posted by: Dennis Harrison | June 27, 2008 3:00 PM

Today, I can’t help but find irony in something popping up in my mind today – the comparison of:

Taxation without Representation


Litigation without Representation

Whether MI/Stroke or bone and spine litigant, all also share, in perhaps a different way but surely so, Merck’s sly methodology of both leaning on and creating methods of “litigation without representation”. A common theme of PERVERTED MASS TORT LITIGATION (cloaked and presented as MASS TORT REFORM) but also known as we find as MASS TORT DEFORM.

Someone may take an intellectual kind of offense at this on July 4th. – I could guess that many outside of being a Vioxx victim would. However – let someone be one of us, and walk in our shoes as any of the maimed, damaged, or survivors of the deceased, and they may feel differently. Any minimization of what happened here is dangerous thinking, as it surely is ammunition in a steady beat of swinging the pendulum ever farther in stripping civil right violations rights…. so bravely defended over 200 years. Make no doubt, this is not only about Merck, it is also about those Deformed Hawks (Merck, “negotiators, Deformers….) circling like pigeons, and stealing those morsals of crumbs left for the average litigant – who is lucky to receive 10% of what it would take to somewhat put their lives back together. Kind of like the British burning your house 200+ years ago and leaving 10% of it to live in….


Posted by: Dennis Harrison | July 4, 2008 11:24 PM

I am still looking for a group to support. It has to see the unlawful, supernatural nature of law doctrines. It has to try to exclude the lawyer from all responsible positions in the three branches of government. It has to propose starting from scratch with the law, without a constitutional convention. It has to support testing new laws as human experimentation, to show their safety and effectiveness. It has to put the public interest above vulgar self-dealing and rent seeking. It has to put science above bias. It has to devise laws that further the decent goals of each law subject. It has to end crime. It has to unleash the American economy to its real growth rate, 10%, when not suppressed by the land pirate. It has to take 90% of the resources now going to useless paper shuffling, and divert it to research and development, including schools that teach twice as much as they do now.

No such group exists, comes close nor even remote. I feel as people opposing slavery did in 1740. Absurd and alone. But someone will find this message in 2300 AD. They will say, someone knew this self-evident stuff. The funny part is that all this stuff is from high school social studies. The criminal cult indoctrinators made you forget high school. They are so good, you do not realize they are doing it, as it is happening in every class. You are so desperate for a job, you wholeheartedly accept supernatural doctrines in the law of a nation with a secular constitution. They are getting you to betray the constitution. You will do without the slightest hesitation or even doubt. That is the power of the rent. Ted is bright enough, but is lost. Also, he is easily set off by personal remarks. He might just get slaughtered in court. You are not yet lost, but you are not intellectually strong enough, nor will ever be. This is the biggest tort. It is worth $trillion to the right person.

Posted by: Supremacy Claus | July 5, 2008 4:26 PM