Justinian Lane

Three Reasons Why Every Tea-Partier Should Oppose Tort Reform

There’s an old saying that politics makes strange bedfellows.  Never has that been more true than with the case of tort “reform” and Tea Partiers.  At first glance, you’d think that Tea Partiers would support tort reform, if for no other reason than most Democrats oppose it.  But here are some reasons why Tea Partiers should line up against tort reform.

Tort reform takes power from the people and gives it to politicians.  A common bond shared by all Tea Partiers is the belief that the government that governs best is the government that governs least.  Tea Partiers are intensely distrustful of any effort of politicians to take power away from the people.  Well, tort reform does just that.  It takes power away from average citizens who serve on jury pools and puts it in the hands of elitist politicians.  Take damage caps, for example.  Instead of trusting a duly empanelled jury of average citizens to do what’s right, many politicians would prefer to cripple the ability of juries to award the amount of money it feels is just.  Now, who knows better what the appropriate amount of money to award is: twelve citizens who spent three months listening to evidence, or a handful of politicians who know nothing about the specific facts of the case?  Worse yet, those same politicians would prefer that juries don’t know about the damage caps.  It’s just the same as telling a jury they’re allowed to impose the death penalty, but then when the jury does impose the death penalty, reducing the sentence down to 15 years.  If Tea Partiers believe that juries can be trusted to impose the death penalty, then they should also believe that juries can be trusted to award monetary damages.

Tort reform will increase the cost of the healthcare reform.  One of the main reasons Tea Partiers oppose Obamacare is because of its high cost to taxpayers.  What many Tea Partiers have never been told is that instead of lowering the cost of the health care plan, tort reform will actually raise it – here’s why.  Imagine that a careless doctor causes a patient to need $100k in medical bills.  If the patient sues the doctor and recovers that $100k in medical bills, it is the careless doctor who is paying for the cost of his mistake.  If tort reform makes it too difficult to sue the careless doctor, the patient may just let his health insurance company pay for all of the medical bills.  If his health insurer is Medicare or Medicaid, that means that taxpayers like you and me will be paying for the mistake of a careless doctor through our taxes.  If his health insurer is a private company, the other people who use that insurance company will pay in the form of higher premiums.  If there’s one common-sense rule out there, it’s “you break it, you bought it.”  Unfortunately, tort reform lets other people “break it” and forces taxpayers to “buy it.”  I used the example of $100k in medical bills.  That may sound like a lot, but it isn’t.  If a careless doctor causes a baby to become brain damaged, the lifetime medical costs for that brain-damaged baby can easily exceed $20 million dollars.  If a doctor or a hospital is to blame, shouldn’t they pay the $20 million dollars instead of forcing taxpayers to pay for their mistake?

Tort reform makes it harder to hold the government accountable.  We all know that many state attorneys general are filing lawsuits to block the health care bill.  Those attorneys and many of their constituents believe that the government has violated the Constitution.  While tort reform probably won’t stop those lawsuits, it might stop lawsuits brought over other Constitutional violations.  The fact of the matter is that when the government violates your Constitutional rights, the only way you can stand up for yourself is to file a lawsuit.  For example, when Dick Heller believed he had a Constitutional right to own a firearm, he filed a lawsuit to enforce his Constitutional rights.  If Tea Partiers don’t want to discourage the next Dick Heller from fighting to enforce his Constitutional rights, then they should oppose tort reform.  If they don’t, they might find themselves without recourse if the government tramples their Constitutional rights. 

Our civil justice system is truly of the people, by the people, and for the people.  Tort reform aims to change our justice system into something that is under the control of the politicians, run by the lobbyists, and for the benefit of wealthy corporations.  Tea Partiers therefore shouldn’t let themselves be hoodwinked into supporting tort reform.

Justinian Lane: Author Bio | Other Posts
Posted at 4:20 PM, Apr 08, 2010 in Civil Justice
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Right on money--as usual. You made your point a lot better than I did awhile ago but the point is the same: tort reform is a form of socialism...

Posted by: Brian R Wilson | April 8, 2010 10:57 PM

Wow, more holes in your logic than Swiss cheese.

Oh and for christ sake do something about the damn spam commenters

Posted by: Adam | April 9, 2010 11:14 AM

Working on the spam commenters now, Adam.

Care to point out where the faults in my logic are?

Specifically, can you refute:

1: Tort reform takes power out of the hands of juries.
2: Tort reform will lead to fewer lawsuits, and a fortiori to fewer repayments to Medicare/Medicaid and private insurers.
3: Tort reform measures like "loser pays" would make people hesitant to sue the government.

Posted by: Justinian Lane | April 9, 2010 12:29 PM

So, Justinian, you lying hypocrite, when will you openly support ending the privity obstacle to a negligence lawsuit against an adverse lawyer by third parties? Isn't that the ultimate self-dealt immunity of the lying hypocrite lying lawyer? Openly support allowing the victims of weak cases (the majority filed) to be compensated and made whole. Or shut the eff up about tort reform.

I oppose all tort reform, including limits on exemplary damages, for the record.

Posted by: Supremacy Claus | April 10, 2010 5:21 AM

Here's a better idea, SC: Why don't you shut the eff up about your crackpot theories? They have no support in law, logic, or reality. You've ranted here for years about your crazy notion that everyone in the world should be able to sue every lawyer in the world for practicing law. No one here is interested in them, and from what I can tell, no one anywhere else on the Internet is interested in them, either.

I don't think you've made one useful comment in your entire time commenting here. Consider this your last warning to keep things civil, or you can add TD to the list of sites you've been kicked the eff off of.

Posted by: Justinian Lane | April 10, 2010 10:03 AM

Justinian: Bad day? Had we been in court, the judge would have rejoindered your remarks. That would have sent a signal to the jury as to whom to side with. Don't lose control like that in court. It is a form of lawyer malpractice. Some of us are experts at inducing these remarks, as a trial tactic. Rookie mistake to fall for it.

But please, ban me like Ted. It says more about your ability to rebut than about the validity of my ideas. Neither of you law type can handle equal treatment. You want your self-dealt privilege and immunity to carry on your corrupt land piracy.

Here is someone with the same crackpot ideas, you lying hypocrite. From the ABA. Geoffrey Hazard, President of the ALI, author of the Restatement of the Law Governing Lawyers. From 1995.

"Strict adherence to privity between lawyers and their clients is a "vestige of a rule abolished for everybody else," says Geoffrey C. Hazard Jr., who, as director of the
Philadelphia-based American Law Institute, has been a force behind the Restatement of the Law Governing Lawyers. Attorneys cling to privity "because they don't like to be
sued," maintains Hazard, who also is a professor at the University of Pennsylvania Law School. "Lawyers are whining about this in quite an unjustified way.""

Not only a hypocrite, but a self-defeating dumbass. You fail to understand, this proposal is for the good of the lawyer profession. If torts is a substitute for violence, then immunity grants full moral and intellectual justification to violence. With immunity there is no legal recourse.

Posted by: Supremacy Claus | April 10, 2010 1:21 PM

One of the many problems with your theory is that you seem to think any lawyer who loses a case automatically committed malpractice and thus should be liable to the winning party.

Let's test the bounds of your theory. Would you allow every criminal defendant to sue the government if he is acquitted? What about when parties are attempting to "make law" by litigating a case of first impression - is the "loser" guilty of malpractice?

If you want to argue that in a SPECIFIC case under a SPECIFIC set of facts that a lawyer should be liable to a third party, I might listen. For example, if an attorney falsifies evidence to win his or her case, that might be an appropriate situation. Or if a lawyer tries to bribe a juror or a witness. But the idea that every lawyer who loses a case should be liable to the winning party is a bad idea.

Posted by: Justinian Lane | April 10, 2010 2:02 PM

Justinian: That explains your anger. You misunderstand the proposal. You think it is a type of loser pays. I oppose loser pays, and support the American rule.

The proposal is to sue for legal malpractice, when the adverse lawyer has deviated from professional standards of due care. I am willing to allow a reform item of requiring a certificate of merit. An expert in the specialty of the other lawyer will have to testify and demonstrate to the jury how the defendant lawyer has gone beyond standards of due care.

If such a case is filed and is weak, or is filed with an improper purpose, such as retaliation, the filing of the case would itself be an intentional tort, subject to exemplary damages.

An expert from the specialty of the lawyer would be required to testify against him. To deter weak cases, which are a form of lawyer malpractice, but to not deter the strong, well prepared cases.

The proposal is completely neutral, you may be relieved to learn. A plaintiff should be allowed to sue a defense attorney for the filing of a frivolous defense motion, another form of lawyer malpractice.

The aim of this proposal is neutral. It is to increase accuracy.

In the criminal law, 75% of cases are won by the prosecution, with many more handicaps than in torts. In torts, the fractions are reversed. Let tort litigation meet the professional standards of the criminal prosecution. That would be within the standard of due care.

Posted by: Supremacy Claus | April 10, 2010 10:34 PM

It is coming our way. You mentioned falsification by the adverse lawyer. Here is a review of a case with triple the legal expenses against the assets of a lawyer who did that. Amalfitano v. Rosenberg, 903 N.E.2d 265 (N.Y. 2009).

"But we shouldn’t have to guard against the lawyers to the proceeding engaging in deceit, particularly where the courts and the legal profession have established a monopoly on the practice of law and have certified the fitness of those who practice it. The courts and the legal profession have, in effect, made an assurance about the integrity of the process. Permitting lawyers to damage that integrity creates the kind of public or third-party harm that, to my mind, justifies a remedy."

Posted by: Supremacy Claus | April 11, 2010 11:30 AM

Thanks for that link. I haven't read the underlying facts of the case, but I see no problem with treble damages against an attorney who knowingly engages in deceit - depending on how deceit is defined, of course. Treble damages and disbarment sounds pretty fair to me in cases of extreme deceit, like bribery/falsifying evidence/etc. The key provision to me is that it has to be clear deceit, lest opposing counsel use it as a weapon to try and badger the other side into settlement. "Your guy lied during the depo. Settle now or you'll be disbarred and have to pay me treble damages."

I also wonder how it would work for plaintiffs since their attorneys don't usually track the time they spend on cases.

Posted by: Justinian Lane | April 11, 2010 9:21 PM

Glad to see you are thinking instead of shunning, as Ted did immediately. I still like Ted. I think he is funny.

If I were the subject of a frivolous defense motion, I would certainly want to assess the time and cost of replying to it. However, I would also move for a mistrial, and all legal costs during the trial. I would then sue the defense lawyer in a separate legal malpractice claim. The plaintiff lawyer keeps track of the time required to carry out each action, and his standard fee could then be applied. There are more damages than can be recovered by reclaiming legal fees, and ending the trial.

Posted by: Supremacy Claus | April 11, 2010 10:36 PM