Tort-Reform: Why Other Peoples’ Lawsuits Cost Us So Much Money & What To Do About It

Next time you hear about somebody suing somebody else for money to try to make up for some injury, more likely than not remember this: We are paying for it in the long run. We pay for the Courts and the Judges. We pay the legislators who spend their time making regulations (laws) that provide remedies for victims protected by such laws.

And most of all, we pay insurance company premiums and deductibles who all too often end up paying for the damages sustained by the alleged victims in these lawsuits. After all, the money doesn’t come out of the pocket of the insurance companies. They pass it on to us.

The insurance lobby loves it when lawmakers pass new laws to protect people from themselves: laws prohibiting this and mandating that to the point of regulating every breath we take. And Plaintiff-side personal injury lawyers love it too: more work for them. The more individuals and companies see other people getting sued, the more insurance protection they buy from insurance companies. So it’s a win-win for the insurers when people and companies are involved in lawsuits. As a result, insurers receive more clients and charge higher premiums all around. For all their talk of “risk”, insurance companies don’t really risk a cent because they just pass on these costs to us all.

So this is what the hubbub is all about when people talk about “Tort Reform”. A tort is a civil wrong – in other words, a wrong by one person or company against another. Negligence is a great example of a tort, but so is fraud, defamation of character, and civil assault and battery (which is similar to criminal assault and battery except instead of going to jail, you shell out dough to the victim). With each of these civil wrongs or “torts” come monetary remedies.

In other words, if you commit a tort against somebody, you pay them money to somehow try to make up for your wrong. Of course, you may have to pay more than just the money that they lost in suffering their injuries (i.e., “actual damages”). You may have to pay for incidental and consequential monetary damages as well. Worse, if it’s found by the Judge or Jury that you acted with malicious bad faith and intentional ill-will, you may be required to fork out multiple times the amount of money that they actually lost as part of the injury. This additional money is called Punitive or Exemplary Damages because it’s supposed to punish or make an example out of you for being a particularly nasty person!

So let’s say you purely accidentally run over somebody with your car at 45 mph, and let’s assume you’re sober and were driving as carefully as possible: they just jumped in your way! In addition to the police investigating you for the possible crimes of aggravated assault and battery if not involuntary manslaughter, the mangled victim can actually sue you in Civil Court for money (i.e., “monetary damages”). In their court papers, they can ask you to pay for the money for their medical damages, the money for their lost wages since they have to take time off from work, the money to pay for their housekeeping bill since they can’t clean their own house anymore, and the money for their personal cook to cook for them since they can’t do that either. Further, if they allege that your actions were intentional and malicious rather than purely accidental, then they can try to sue you for Punitive or Exemplary Damages of up to 10 times the actual damages they suffered. That can really add up, especially when you’ve got lawyers’ bills up the wazoo and you have no idea how the legal system works! More on that later…

Now hopefully if you’ve got full coverage car insurance, the insurance company would typically cover the payments to the victim for any purely accidental injuries caused as a result of the accident — but not for any intentionally caused injuries. Insurance companies can act in all sorts of fun ways with parsing the difference between a pure accident and something more intentional; and they can get awful finicky when choosing when and if to pay for any of the injuries caused to the victim when there are allegations against you of intentionality and malice. But that’s a horse of a different color. Let’s leave Insurance Law alone for now.

The point here is that if and when your insurance company ultimately pays the injured party for their injuries, they just pass on those costs to the rest of their clients by hiking up premiums and deductibles.

The lawyers all get paid, the Judges and Courts get paid, the insurance companies get paid, and the injured person gets paid. And ultimately it’s all of us that are doing the paying through our taxes and our mounting insurance costs.

People who want Tort Reform want to take down the laws that provide for so many legal protections and requirements arguing that they’re not really benefiting us but are benefiting the insurance companies, lawyers, politicians, Judges, and lobbyists who are part of the personal injury lawsuit industry. They argue that such restrictive laws and regulations on every step we take are actually really negatively affecting our liberties, hurting all but the extremely rich, and hampering truly “free trade” while giving us a false sense of protection — because after all what good does it really do us to see more disclaimers on cans of peas, 8-font Terms of Use and disclaimers in every app we download for our smartphones, and ever more expensive medical, rental, professional, and car insurance coverage when we end up paying out-of-pocket more often that seeing the promised land that comes after we reach our yearly deductibles? Amen!

Tort-Reformers further argue that we should put a cap on or utterly eliminate Punitive and Exemplary Damage awards, saying that such awards are excessive, encourage frivolous litigation by greedy Plaintiffs with weak cases seeking another source of income. They argue that since such huge awards are rarely won and since Defendants don’t want to risk litigation when so much money is on the line in the Las Vegas Limbo that litigation can be, Plaintiffs’ requests for such awards when combined with even mediocre facts and law supporting their claims too often result in what are known as “nuisance settlements” – that is, a settlement amount that a Defendant with an otherwise very strong case will agree to pay to the Plaintiff just to end that raggedy lawsuit rather than pay more lawyers’ fees and risk losing the lawsuit based on the Plaintiff’s ability to tug on the heartstrings of the Judge or Jury rather than on the strength of the Plaintiff’s case. Tort Reformers argue that too many nuisance settlements happen for exactly this reason and that this simply results in us citizens paying more for such settlements in the prices we pay for our Insurance, nevermind the ever increasing prices we pay for goods and services when companies and professionals pass their legal costs from such nuisance settlements onto us.

Tort Reformers also want to raise the burden of proof that a Plaintiff has to show the Court in order to win. They argue that the “Clear and Convincing” standard of proof should be replaced by the standard that is used in criminal cases, namely the standard of “Beyond a Reasonable Doubt”, so that Plaintiffs who want to be paid huge sums of money from Defendants be required to actually prove their cases as thoroughly as possible since the damage to the Defendants can be so financially graven. They argue that at least for cases seeking a high monetary figure, say $50,000 or more, this elevated standard should apply. It is this same logic of graven consequences that caused lawmakers to use the “Beyond a Reasonable Doubt” standard in criminal cases, so Tort Reformers argue that it makes sense to use this same standard in civil lawsuits with terrible financial consequences for the Defendant.

And Tort Reformers want third-party, neutral, and truly unbiased Judges or lawyers to vet personal injury claims before they’re filed in Court to determine if they should be permitted to be filed at all, i.e., if they possess sufficiently strong facts and law to support their claims or rather if they are entirely frivolous or just too weak to win. In short, they want to keep these lame cases out of Court in the first place.

You might say that this is a political question, the answer to which is for you to investigate and resolve. You’re either a person who wants a bigger government who watches over you; or you want a smaller government because you’re going to watch out for yourself. You’re either ok with giving up liberties for a bigger regulatory State; or you have a “Live Free or Die” type attitude. That’s up to you.

But remember, next time you hear about anybody suing anybody else, be it an individual or a company, know that more likely than not, we’re footing the bill for the Courts, the Judges, the politicians, the insurance companies, and everybody else who’s sipping from the jug of monetary damages in tort lawsuits.

Hot coffee spilled on the lap of a geriatric in a chain restaurant? Money out of our pockets.

The local police department brutalized somebody? Fork it over, citizen!

False, ugly words written about somebody online? Yup, for that too, we’re payin’ up.

Now as promised, I return to the most important subject of all in Tort Reform. In any meaningful effort to bring sense to the overweening personal injury lawsuit industry and its cadre of “celebrity lawyers”, steroidal Insurance Companies, politicians, lobbyists, and Judges, let’s remember that the biggest screw that needs turning relates to the complexity and inaccessibility of the legal system and the relative unaffordability of lawyers.

The average person experiences all sorts of difficulty in representing themselves in Court, even with self-help guides and resources at local law libraries. And lawyers’ fees can be hard to afford even for the wealthy. What any real Tort Reform platform needs to encompass is a rigorous effort to simplify the Court System, take down so many of the mismatched and arcane procedures required to litigate any case, and promote sound economic principles that are focused on rebuilding the financial strength of the endangered Middle Class American citizen so that they can afford prestigious and ethical legal representation when it’s time to go to Court.

A great lawyer is hard to find; and when you find one, you should not only be prepared but able to pay the fees we rightly demand. Tort Reform, in short, should not only include efforts to deregulate the pseudo-Protectionism built into our legal codes, cap the nosebleed Punitive Damages sought by Plaintiffs in personal injury lawsuits, raise the standard of proof that Plaintiffs have to jump in order to win their cases, and keep baseless or weak lawsuits from being filed in Court. More so, Tort Reform should include a salacious economic policy that bolsters the economic well-being of the 99% of Americans so that when faced with a real and unavoidable legal issue, they can afford truly great legal representation.

Whether that means voting for Donald Trump or Bernie Sanders in 2016, that’s up to you!

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