That is the premise of a story by Kia Franklin at Tort Deform. She argues that while the debate is framed by the tort reformers as business versus trial attorneys (or should I say “evil” trial attorneys), the real struggle is between big business and the average Joe. Makes sense, the people who suffer when big business, like the health insurance industry, make huge profits, are everyday people. The people who suffer when someone is injured are the guy who is injured and his family. Not the person who caused the injury. The person who caused the injury isn’t at the hospital every night, they aren’t at the physical therapy clinic every day. They don’t have to deal with the consequences of their actions, unless a trial lawyer is inolved.
The tort reform movement is about gaming the system, so the insurance company or big business who is responsible for paying for the loss never has to pay, or pays a reduced amount. The way the tort reformers are gaming the system is through passing laws that prevent the average Joe from pursuing a claim, putting judges on the bench who “legislate” from the bench (ie. make tort reform laws in their rulings), and through media propoganda against junk lawsuits, which is meant to taint the jury pool.
Our country from the very beginning embraced a democratic system whereby wrongs are addressed by an independant judiciary and individuals have an opportunity to bring their grievance before a jury of their peers. Chief Justice Marshall, the Great Chief Justice, stated in Marbury v. Madison that “the very essence of civil liberty consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection”.
The Supreme Court in Chambers v. B&O Railroad (1907) stated “the right to sue and defend in the courts is the alternative of force. In an organized society it is the conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship.”
By trying to subvert the judicial system, tort reformers are trying to subvert our system of government, and make it a government run by corporations, something akin to the system Mussolini had in Italy. If big business is not held accountable, they are elevated up above the rank of the average citizen, who is always held accountable for their actions. Tort reform is about taking power from the people, it is about taking away the only power an average citizen has in our government.
Right now an average citizen does not have the power to walk in to a legislator’s office and bend the ear of a legislator, or walk into the governor/president’s office and spend an hour discussing legislation. Big business does and exercises this power everyday. But the average citizen does have the power to file a lawsuit, that is what big business is scared of. People can be heard through a lawsuit. Big business wants to take this power away from people. By taking away the right to a jury, they will accomplish that.