What do people mean when they say "tort reform," and why do they think it is a good thing?

As you know, a tort is one persons action against another. This is mainly confined to civil torts and not criminal. I believe Tort Reform is being considered, in order to eleviate frivolous civil lawsuits against each other and the government. Not all lawsuits, but rather those that no merit on its face. Just to have a civil tort presented in Federal Court, costs the taxpayers $25,000. By the time you compile all the frivolous together, in a years time, this comes to a hefty chunk of taxpayers money.

Case in point: american indian sued the Federal Government as a tort, since he was not allowed to worship his pet rock from inside the prison. Federal Judge withdrew this case as frivolous and saved the taxpers money. His pet rock could have been used a a weapon.

@john65pennington

I see the goal…but that’s not really tort reform. Unfortunately, that seems more like a necessary outgrowth of equal access to the courts.

For instance, some advocate solutions along the lines of making plaintiffs who bring claims that are frivolous being charged with court costs. The administrative difficulty is that it requires further investigation and review of whether the claim was brought in good faith…as in the end, someone could think they have a claim, and the point of bringing the claim is to let experts determine its validity. So this might be less efficient. It also places the cost burden on people who might not be able to afford it, and it’s uncollectible – so you create bad debt. That would most likely result in people fearing to bring lawsuits, even valid ones.

Much of the time, we can’t determine a claim is frivolous until judicial factfinding begins – it’s a built in cost of equality.

@iamthemob What I would like to see is the type of Tort reform you are talking about. It won’t take long for the “ambulance chasers” out there to get the reputation of bad lawsuits. A reputable lawyer won’t take a case that has no merit. They will get washed out rather quickly.

@missingbite

I would love it too…I just don’t know the best way it could happen while still fully respecting full and equal access to justice.

There are also professional factors at work here, unfortunately. Lawyers have to have clients to make money – and you never know if a case brought to you initially will turn out to be a dog. So, on a fairness perspective you need to do some work, and from a self-interest one you must do some work.

Of course, if you end up with a bad case, now you have to convince your client of that. Or, you have to try to do your best for them. The client has often been injured and wants recognition of that. You don’t want to get sued for malpractice.

I have a question: what sort of powers do judges have to reject these frivolous cases? Can a wise judge simply reject one’s he/she deems silly, or are they bound by laws and other precedents to have to allow many dumb ones to proceed?

“What do people mean when they say “tort reform,” and why do they think it is a good thing?”

Objection. The Prosecutor’s question requires that the witness speculate on the thought process and state of mind of another person.

Objection sustained.

@cockswain – Filing a claim requires that there be some support that the facts meet the elements of the claim.

Frivolous claims can end in sanctions against the lawyer…often it’s not frivolous, but not a lot of factfinding is necessary for the claim to be dismissed on the initial motions. That can be appealed.

I much prefer torte, so much more palatable.

I am opposed to the types of tort practices that got us to the tobacco liability judgments (eventually). Those kinds of cases were brought against tobacco companies for years – decades – with little penalty against the attorneys bringing the suits other than a requirement that they absorb their own costs. They knew that by bringing those suits in that way that eventually they would hit a jackpot and get a jury to award damages, and then it was just a cash cow – a lottery for anyone who joined. (That’s not to say that the tobacco companies were blameless, not by any means.)

I’m opposed to the way that malpractice suits are nowadays a “cost of doing business” for doctors. (Strangely, though, not for attorneys, and I’ve seen some equally egregious results of ‘bad lawyering’ as some of the worst cases of ‘bad doctoring’.)

I think that in many of these cases a “loser pays” (for both sides) would present a chilling effect on many worthy suits, too, so I’m not ready to jump on that bandwagon.

I wonder if there can’t be more of a push toward mediation instead of lengthy and expensive jury trials. I’d be more inclined to enter mediation for the few wrongs that I’ve suffered. (I’m not one to “sue the bastards”; I’d just as soon swallow some of the relatively small losses that I’ve suffered, learn a lesson, and move on.)

Finally, what do we do about all of the pro se cases that come from prisoners with nothing but time on their hands, and very often nothing more than malicious intent to game the system, spend more time out of the prison and in a courthouse, and, again, attempt to “win a lottery-style judgement”?

@WasCy

I know that you’re not saying that tobacco awards were undeserved, but how are you saying that the lawsuits were brought solely until they got a sympathetic jury? If the lawsuits were indeed frivolous then there would have been penalties, but over the decades there was more and more information about the health consequences as well as industry practices. So I’m just wondering where you’re getting your conclusions…

Regarding med malpractice issues, there is a good amount of information debunking what has been called the medical malpractice myth.(here’s some conference information). The linked study shows about 5% of all the costs associated with medical malpractice is for judgments. Interestingly…it seems that medical malpractice costs overall, however, have increased almost lock-step with health care costs overall.

I’m all about mediation and other forms of ADR too. However, in cases where people are talking about “tort reform” in reaction to larger settlements, the classes of victims are huge, and the payments necessary would be enormous, and the document exchange insane. Mediation and ADR may work…but there’s a lot of disclosure that may make big corporate defendants balk.

Regarding pro-se court costs…do you have any information about how many are actual tort cases? As well as how much cost to the system there is?

Not trying to be contrarian…but I rarely hear claims based on evidence that isn’t anecdotal that make generalizations about settlement size, gaming the system, etc.

@iamthemob

My point about the tobacco liability trials over time was that there seemed to be a lottery mentality: pay small costs for this trial and that trial with unfavorable outcomes, and wait for the big payoff that’s bound to occur.

I’ll look at your medical malpractice links later – I was about to head to bed now. But so much of what I see and hear about malpractice these days never even gets to ‘judgment’. No defendants are willing to take the chance on what some of those judgments could be, so “malpractice issues” (according to doctors I’ve spoken to – I haven’t studied the issue) are more often settled out of court for lesser amounts, regardless of merit. I hear the same stories regarding automobile “accident” claims, such as the notorious swoop and squat insurance fraud schemes, among others, that “settle” rather than risk trial.

You’re correct that my experience is anecdotal only. I don’t have experience in the field at all, and I haven’t studied it. But the anecdotes seem real enough, and the trends to “settle rather than defend” have been going on for decades that I’m aware of (malpractice, labor law, insurance, you name it).

@WasCy

Remember also that the tobacco trials were individuals against one of the largest multinational industries in the world.

And sure, there’s a “settle over trial” mentality. But that’s the case in civil liability – it’s an inevitable consequence. And there isn’t anything in a tort reform mentality that would prevent this – businesses settle when it’s cheaper, and it’s often when they’re of a certain scale. Don’t forget that many of the times they’re settling on cases that they’d lose in the end. And at the scale where that’s a practice, sure…there are scams – but those are like loss leaders.

Settlements have always been the name of the game in civil trials. Everyone hates a trial. In the end…that’s just business as usual.

@iamthemob how can you be forgetting that “businesses settle when it’s cheaper” because they have to pay their legal team whether they win or lose? So they settle in many cases when they know (or have every expectation) that they would win, but the settlement cost is not so much more than the cost of defense, and the wild card is ‘what if they don’t win?’ Business people understand the concept of risk, and will take on ‘acceptable risk’ for ‘likely reward’, but the current litigation climate seems like more ‘business expense’, and one that has been allowed to flourish in this country because of the way our system is gamed.

That’s the entire essence of tort reform, isn’t it? ‘Likely winners’ in legal cases (yes, in ‘business defense cases’ probably more than any other) want to give themselves a chance to a) defend themselves from nuisance (and often borderline fraudulent) lawsuits and b) not have to absorb the costs of constant litigation as a business expense.

@WasCy – With businesses as large, employees as decentralized, and customers as diverse as we have now, a country as large as ours, along with the concept of equal access to the courts, having a system where individuals are allowed to file suit against someone they believe has wronged them inevitably will result in many, many suits. I think that the flaw in your argument is the assumption that there’s something about the legal system that needs to be fixed to reduce the “settle it and forget it” phenomenon, then it’s not clear that there would be a real effect with any major revision, or even a minor one.

The further assumption is that there is a significant amount of “nuisance” suits – unfortunately there really can’t be any accurate data on this. Settlements are inevitably accompanied with confidentiality orders, and a win or a loss doesn’t mean that the outcome was right – we hope it was, but we can’t really get hard data on it. Further, the major complication in all of it is that we’re dealing with people. Plaintiffs will many times bring suit because they think they’ve been wronged…not because they have been. But because there’s so significant a disconnect much of the time between what the Plaintiff knows and what the facts surrounding the case are, suit often must be initiated to get disclosure from the defendant of information on their end about policies, procedures, safety standards, etc. in order to determine whether the suit is a good one. So much of the time settlement is the result because after parties look at all the information (assuming it’s exchanged) it’s not that a suit is frivolous – it’s just unclear.

I think that’s the problem I have with tort reform pushed as a solution to litigation volume – tort law doesn’t clearly have any perceivable effect on creating this volume. Litigation volume explosion seems a likely consequence of a general disconnect between consumer and producer, employee and employer, etc. An injured person doesn’t know why they slipped in that store and broke a hip…but the store isn’t going to say anything. To find out, s/he’s got to sue. The relative of someone who dies in surgery doesn’t know why their parent died, but they’re mad and were told that the risk was low…and they have to sue to get information about what happened in the surgery.

These are factors wholly outside the laws in place.

Hmm. Well, we could disagree about why it’s inevitable that we’ll have the blizzard of litigation that we have, and it seems clear that we will disagree to an extent. You seem to think that it’s a function of the country’s size, diversity and ownership/management decentralization, and I think it’s more because the system encourages “multiple suits in favor of a well-heeled defendant” and the world’s largest – and increasing – concentration of attorneys playing by those rules. I agree that size, diversity, decentralization and disparity in wealth make a difference, but not as much as the fact that an attorney faces no real sanction for bringing a suit that even he or she believes has no real merit. “Throw it all against the wall, and see what sticks,” is a common refrain.

It also often seems to me that we have generated a culture of “suing for unfavorable results”, whether the unfavorable result involves a legitimate slip-and-fall in a store or death of a loved one from ‘routine’ surgery, or being injured by the driver / owner of a car while trying to steal his hubcaps, tripping over one’s own toddler in a store, being locked in a garage one is trying to burgle, or driving off the road in a motor home because the driver’s manual didn’t say that “cruise control” did not include “automatic course correction”. Why were these lawsuits even initiated?

@WasCy – I argue the factors I mentioned clearly contribute to the litigation. I feel like the result for the larger defendants who would have teams of lawyers on retainers generally the policy would be to determine where the cases were unclear (which would be most) and settle as much of them as possible. It reduces much of the cost by making it more of an administrative procedure…but also, there’s a distinct business interest in not constantly being in court against your employees or your customers. Even if you win, it looks bad.

I’m not saying that maybe law revisions could reduce these costs, or the costs to the court – I just don’t see how that result is predictable considering the countless variables…and think that the threat to chilling valid suits as a justice concern is too important to risk in that case.

The main problem with looking at the attorneys is two fold: (1) clients lie; when they don’t lie, they’re not giving you all the information; when they don’t think they’re lying, they’re likely coloring the facts; even if they’re totally truthful, you need to find the evidence; and (2) when you have what you think is one side, and it looks like there’s a claim, you might not know how bad the case really is until you’ve threatened or initiated a lawsuit, as the defendant is likely not going to disclose to you what went on, understandably. So it’s often the case that they don’t know until it’s too late.

But there are sanctions for bringing lawsuits that you know don’t have value. Lawyers get professionally sanctioned and held in contempt etc. all the time. However, it’s just not clear much of the time whether there was no claim from the beginning. And if you do learn it – again, try to tell that to the client. Often, the lawyer gets accused of trying to weasel out because it’s too hard or they think they’re not going to get paid or something – and trust me, there are plenty of suits for legal malpractice in those cases. Lawyers are most often subject to disciplinary reviews for one thing: not calling clients back when they want you to.

Now, suits (and even wins) by some of the plaintiffs that you mentioned are of course reprehensible. But the reason why we hear about things like that are because they’re newsworthy. They also stick out. They happen, people are dicks and they game the system, and sleazy people become sleazy lawyers and help them…but if those were the rule and not the exception, trust me, there would be no question about tort reform – it would move forward.

And much of the time, all of the facts aren’t given (yay corporate media). A classic example is the McCoffee that woman spilled on herself in the car who won millions. However, note…I started to type this before I clicked your link…and you totally linked to an award in her (Stella’s) honor…I’m about to tell you why… what isn’t told about that case is that McDonalds was super-heating their coffee, and when it was spilled on her lap she suffered horrible second degree burns on her thighs, and permanent scarring. Also, people always tell the story emphasizing she was in her car. Yes she was – and she was driven there by a family member who she asked to pull over while she added some cream and sugar to her coffee – which is, I think we all can admit, much more responsible than a lot of people we know.

Again, those are ridiculout cases – but we only get a soundbite. The reason why they actually won may be because of a whole bunch of facts we don’t know – many of them about the defendant and harms they knew could happen, were warned about, etc….and it just happens that a jackass plaintiff is the one who benefits from it finally going wrong. And, in the end, these situations are the exception…and not the rule.

The problem is that these are the things that people point to when they call for tort reform – and I think these types of insane sounding cases are a distraction from determining where efficiencies really can practically be improved…

Great conversation guys. Even though the Stella awards are outliers and (I’m assuming) far from the day-to-day legal battles in this country, I would love to interview the jurors on how they awarded $1.75 million to a guy that assumed his RV could drive itself.

I don’t know much about this subject at all, not even enough to claim to be a layman, so I hope you don’t mind entertaining my questions.

I’m led to believe from what I’ve read that the legal system is clogged with vaguely defined “frivolous” cases. These may or may not result in actual trials, right? Just holding hearings for such a glut of cases is a problem?

Lawyers can face consequences for bringing frivolous cases before a judge. At what point does this happen? After the trial? At the hearing? When it is filed? All of the above and anywhere in between?

If a lawyer is charged with contempt or sanctioned for bringing up a frivolous case, the lawyer can then appeal that, bring more information forward, etc… clogging the system further. The end result being it is “unclear” when a case is determined “frivolous”?

Hopefully you can see where my misconceptions and correct assumptions lie, and can clarify this to me. I get the impression that true tort reform would put more power in the hands of judges to declare cases frivolous without many avenues of recourse to the lawyer/plaintiff. This would occasionally stop some valid cases from being heard, but would cause lawyers to accept less frivolous cases for fear of sanctions.

@cockswain – I’ll reference Rule 11 sanctions under the Federal Rules of Civil Procedure. Frivolous claims are essencially those that are not supported by facts, do not fit the elements of a claim and do not attempt to put forth a novel legal theory, after reasonable inquiry to attempt to ascertain that information.

Regarding appeal…that would go to the plaintiffs claim and not a sanction necessarily. If the case was brought in good faith, they may attempt to amend, etc., and refile (essentially an appeal but not to a higher court) in the fed rules. But if the court has moved to Rule 11 sanctions – it’s probably not going to happen.

Most object to the fact that they’re filed and any review takes place for many claims. Of course, it’s hard to stop people from filing claims if they feel they’ve been wronged.

The thing is, there is a huge difference between a claim that’s dismissed as just failing to meet the standards necessary to win and a claim judged frivolous. The frivolous claims are clear to everyone. Many of the cases that people claim are frivolous are still in a grey area…even if it’s more likely that one side or the other will win. Going to trial entails risk that most want to avoid. I feel like the impression is that most of these cases shouldn’t even be settled, but should be tossed…when in the end, no one really knows.

Do you have any information regarding regarding how these frivolous suits are tracked?

@cockswain

The point I try to make about the “Stellas” is “what attorney in his right mind would bring some of these cases to court?” more than the fact that they won. We agree that juries are often stupid; that wild card is part of the system. But that the system (before the case even gets to a jury) is so flawed that attorneys take those cases with relative impunity is what floors me.

Forget about “being laughed out of court”, the plaintiffs (and how many more like them, I wonder) should have been laughed out of the attorney’s office.

(1) We don’t have all the facts of any of those. Before we say “this is clearly insane” we have to look at the primary court documents. But…regardless…let’s assume that they’re as ridiculous as they seem, then…

(2) There are egregious examples in every system, job, etc. where we ask that. The law is nothing different.

I have no information regarding how frivolous suits are tracked. I wish I did so we could maybe get a clue as to what percentage of total cases they represent.

While your link on Rule 11 was informative and answered part of my question very well, guess how much I enjoyed reading it? just guess

So I now see why tort reform isn’t a simple situation. It seems the goal is to simply reduce the number of cases total. So when one is asked, “do you like tort reform”, the average bear will say, “yes, I would like there to be less frivolous cases.” But I don’t know at the moment if frivolous cases occur frequently enough to be a true problem.

You’re a lawyer. What do you think is a good idea? Should the reform be to significantly reduce the number of “less important” cases, increasing the standards for what may constitute a legal action, maybe even increasing penalties for lawyers for violating them too (that would be an option later, not immediately)?

@cockswain – To be honest, I don’t think that the problem can be fixed at the justice system level. The general concern is about large awards against big defendants….

…I think it’s at the industry level. I think that if we had more transparency on the business level, corporate personal responsibility, and took the initiative to start shifting contentious issues to ADR, or in employment cases have built-in mediation programs…etc.

All I can say is that I completely agree with @iamthemob and really can’t add anything that he has not said more eloquently or forcefully than I could say, or that which he has pounded, ever so gently, into your heads better than I can, could or would even try to. All I can and will add is follow the money. Look very carefully, very carefully at who has the most to gain from “tort reform.” Also, look very, very carefully at who really wields the power in the civil courts and who doesn’t. Don’t blame the people with the least power, the least money and the least influence for what may or may not be wrong with the system.

@lillycoyote – I would just add “least information” to that list.