There is a new article in the New York Times about the continuing tort wars. The tort wars started as far back as the 1950s and 1960s when insurance companies began running ads warning of fraudulent claims and producing television shows about insurance fraud. The purpose of the propaganda is to brand anyone making an insurance, even legitimate claim, as an insurance cheat. The whole tort reform public relations campaign is focused on demonizing the injured and those who helped the injured, trial lawyers. The modern tort reform agenda was started in the late 1990s. The strategy involved spending money on advertising to influence voters in judicial elections, to ultimately by the type of judge who would rule in a business friendly manner, as well as lobbying lawmakers to pass tort reform bills.
The article quotes Thomas Donohue, chief executive of the US Charmber of Commerce on the work the Chamber has been doing in the tort wars, “(i)t took guts, bravery and vision to get behind what must have seemed like an insurmountable task — taking on the powerful trial bar… We have succeeded beyond our expectations.”
The article lists some of the victories the US Chamber claims: the 2005 Class Action Act, federal legislation that prevents a good number of class actions from being field in state courts; the number of personal injury lawsuits for cases involving things like car wrecks and medical malpractice declined steadily from 1995 to 2005; and the number of what the article calls “megaverdicts”, verdicts topping the $100 million mark, went down from 27 in 2000 to 2 last year.
Tort reformers came up with an ad campaign which branded certain jurisdictions “judicial hellholes”. The ranking, compiled from a survey of corporate attorneys by the American Tort Reform Association (notice it is not a survey of average citizens and is not balanced by the experience of the plaintiff’s bar), is purported to rank states in order of those most friendly to businesses to those that are least friendly to businesses. The article states that Mississippi, which was ranked at the bottom of the list in the early 2000’s, enacted tort reform legislation recommened by ATRA, seemingly in response to the rankings. The article quotes Lance Stevens, a Mississippi lawyer on the issue. Mississippi has only moved up a couple of places since enacting sweeping reforms. Mr. Stevens thinks that corporate lawyers are not critical of Mississippi because of the justice system in the state, but “it is the corporate lawyers for the Fortune 500 companies expressing their general disgust for Mississippi and their mistaken belief that we are culturally retarded.”
Trial lawyers continue the battle on the other side of the equation. The battle continues on the ground in different states across the country where lawyers are fighting unjust laws on constitutional grounds, lobbying state legislatures to repeal or amend unjust statutes, and push for laws that punish the insurance companies who unfairly deny claims, rather than the victims seeking compensation. On the federal level, trial lawyers are pursuing federal legislation that would make it possible for consumers to go around arbitration agreements found in form contracts like those credit card companies require consumers to sign.
Ultimately there are no winners in this war except the big business interests and insurance companies who shirk their responsibilities. Victims have their rights taken away. Is restoring a victim’s right to sue, when the right has been taken away, a victory? Hardly.