As a plaintiff’s lawyer I hear a lot of the support “tort reform” nonsense that goes around. Tort reform sounds nice. It sounds like an honest effort to eliminate abuse of the legal system. Who can’t get on board with that? I’d like to rid abuse of the legal system. The problem is tort reform isn’t really about getting rid of abuse of the judicial process. It’s an effort to reduce the opportunity for plaintiffs to bring legitimate claims and seek relief from a jury. You can tell the supposed tort reform is a partisan effort just by reading their fear-mongering literature.
Propaganda by insurance companies and other large interests in Texas
It’s propaganda that reads legitimately as long as you don’t think about it too much but what gives away the partisan identity most is the complete absence of any demand to reform the tort system to prevent defendant-side abuse. No talk about curbing the use of frivolous continuances to drag out a case, unnecessary and extensive discovery practice to drain a plaintiff’s will to reach trial, and certainly no talk about using motions to dismiss and summary judgment to raise weak arguments to further delay resolution of legitimate claims. No talk about cutting back contract-based litigation where large businesses willingly breached contracts because they no longer suited their needs. Just attacks on real people who try to use the courts to right a wrong.
Who advocates for “tort reform”
Given the one-sidedness of tort reform advocates, it is unsurprising who advocates for tort reform: insurance companies and pro-business groups. This should be unsurprising because insurers and businesses tend to be the parties most likely to find themselves as defendants in the sort of case you might find yourself a plaintiff. The insurers and pro-business groups are aided in their advocacy by law firms who practice defense-side.
You might think for a minute that these law firms would actually want more litigation because they get more work that way. They don’t actually want less litigation filed as much as they want to cut off the ability for plaintiffs to recover against the defendants. That means just as much work for them but they get to look like winners more often because the defendants either pay plaintiffs a lesser amount or nothing at all. To that end, the insurers and businesses are getting played by their own counsel.
Texas attorney on tort reform report
An excellent example of this one-sided depository for garbage arguments is the American Tort Reform Foundation’s annual “Judicial Hellholes” report. This sixty-four page assault on individual rights is full of fear-mongering, misconstrued interpretations of isolated events, attacks on the legal system and anecdotal statements from defense-side attorneys and conservative judges. What you won’t find is any criticism of defense-side tactics that abuse the legal system and prevent legitimate claims from reaching a fair resolution. ATRF releases this report annually to help fuel tort reform arguments by pointing out the “worst” places in the nation for
people defendants in litigation. The propaganda piece is so thinly veiled it doesn’t take much to deconstruct the arguments. I won’t go page by page through this but I’ll poke enough holes that you can finish it yourself.
Let’s start right on the cover. It begins with a cheesy map of the United States with these raging fires forming a thick cloud of smoke over the country. The real irony right on the cover is that the pictures of the fire look like they were photoshopped out of pictures of the BP oil spill in the gulf and later the “report” will go on to excoriate the judiciary, lawyers and plaintiffs, in the gulf for thinking BP might have to cough up some cash for all the harm it caused in the region.
So what we know right away is that real, disastrous fires aren’t important except to use their images to talk about illusory hyperbole. Inside the cover we get three quotes that will get recycled later in the document that sound really bad but they have no context up front other than to strike the tone that you’re about to get scared out of your mind. I mean, we’re three pages in and the judiciary is crumbling under the weight of fake fires. That sounds like a serious argument for reform of the legal process, right?
Where this nonsense comes from
The preface gives you the most honest statement of the whole document:
The report also reflects feedback gathered from ATRA members and other firsthand sources.
Lots and lots of feedback from members who are just giving their opinion. And who did we say make up these tort reform groups? Yep, we can already figure out what will make up the remaining fifty-something pages with that single sentence.
Hoping right in to the content, the document begins exploring hellfire California. In the introduction, we get four quotes: one is from Chief Executive, a magazine for CEOs; one is from the executive director of another tort reform group; one is from a journalist for an Orange County paper; and the last comes out of the Wall Street Journal from a disbarred plaintiff’s attorney. That sure sounds like hard-hitting factual sources, right? The next section discusses, in extremely vague terms with little facts, some food industry class action suits. Yeah, the nerve of attorneys filing lawsuits to want food to be safe. That’s obviously the sort of thing we need to stop right away. This section identifies one dismissed class action; so I guess we can only conclude that all the rest must be bunk.
I’ll leave it to you to read the rest of this pile of trash if you really want to. You might find amusement in these kinds of ridiculous arguments.