A good friend asked my opinion on Tort Reform and asked that I express my opinion in writing for a class he is teaching. I am a licensed attorney and an entreperneur — read more about me at jamesneeld.com. This article contains my personal opinions and is not legal advice. If you need legal advice, engage an attorney.

Tort reform is not a single idea or concept. Instead it is a group of laws designed to change the way our civil laws work and the method by which our civil justice system enforces those laws. However, all tort reform measures share one or more of the following goals:

1. Make it more difficult for injured people to sue; or
2. Make it more difficult for injured people to obtain a jury trial; or
3. Place limits on the amount of money injured people can receive for injuries.

Most states have some form of “tort reform”. Each State’s efforts range from limitations on the time period within which an injured person can sue, to actual caps on damages an injured person can achieve. The real battleground today involves caps on damages for punitive damages and caps on damages for medical malpractice lawsuits. For a detailed state by state analysis of tort reform, please see this excellent link.

What do the proponents of tort reform say?

1. Tort Reform Will Reduce Health Care Costs.

The gist of this argument is that doctors are scared of getting sued. Therefore they order a ton of unnecessary tests and procedures so they are covering their backside. U.S. Congressman Mike Simpson (R) states:

Medical malpractice (tort) reform is an idea that most Americans support that would bring down health care costs for taxpayers and improve access to care. Our current system increases costs both directly, in the form of higher malpractice insurance premiums, and indirectly, in the form of defensive medicine—when medical services are prescribed primarily to avoid liability rather than for the benefit of the patient. Placing reasonable limits on health care litigation would help reign in these costs without sacrificing quality of care.

“The connection between litigation and costs passed on to patients is undeniable. One state survey revealed that 83% of participating doctors admitted to practicing defensive medicine. Significant numbers of tests, procedures, and hospital admissions were being performed just to avoid lawsuits.

2. “Judicial hellholes” attract frivolous lawsuits and/or result in dangerous, out-of-balance judgments. Therefore judicial caps on damages provide predictability, lower insurance rates and give stability to the legal system.

Basically proponents argue that certain judicial jurisdictions are known to award ridiculously large amounts of damages to plaintiffs, resulting in judgments that kill businesses.

“There is no judge or jury who can put a number on something as subjective as pain and suffering,” says Darren McKinney, director of communications for the Washington, D.C.-based American Tort Reform Association in an April 2013 ABA Law Journal Article.

“Limiting awards for subjective, noneconomic damages is one means to reduce incentives for bringing meritless lawsuits,” says McKinney, “and that’s a step in the right direction when it comes to reforming our civil justice system.”

What do the opponents of tort reform say?

1. Restrictions on damages violates the Constitutional right to a jury trial.

This argument has been addressed in many jurisdictions with some notable opinions issued in 2012 and 2013. The Missouri Supreme Court is the most recent state ruling that the state’s non-economic damage limits were unconstitutional. On the other hand, Kansas in the same year ruled that caps were constitutional. Overall, the issue is a state-by-state decision with arguments running the gambit both ways. I will not try to recreate the excellent work of Mr. Walter Boone found here. Suffice it to say the states are split almost exactly down the middle.

2. It just isn’t fair.

There are many, many examples of young girls and boys suffering from horrible injuries at the obvious negligent hands of a company, doctor or other person. In the cases where liability is not in dispute, such as the doctor in Kansas that removed the wrong ovary from a woman, the issue is “what are those damages worth”? In Kansas, the jury awarded the plaintiff a considerable amount of money (approximately $850,000) which was reduced by the legislative cap to $250,000. I think most reasonable people will say that there are situations (such as the Kansas case) in which the injuries and damages far outweigh the cap.

I think we should focus on the problem, not the result of the problem.

So What Do I think?

I think I am a conservative that enjoys less government. I believe in limiting government in my day to day life. I believe that companies survive by their value, their product and their ability to do things correctly. I believe artificial caps on damages are subjective, take away my personal rights and frankly, do not address the core cause of the purported problems.

As a result, I believe any legislation that limits my rights under the Constitution should be scrutinized severely. In fact, any legislation that decides in advance what a jury can or cannot do should be scrutinized severely.

As a result, I am typically against most tort reform measures. In particular, I am against medical malpractice caps. A discussion of “why” on each topic of tort reform would take many more pages than I am willing to write for this particular project. However, I will give you the following highlights.

Protections are already in place.

Pro-tip: Type the word “remittitur” in Google and read the definition. The concept and practice of remittitur has been around for as long as we have had common law in this country. Basically, this is the ultimate “check” on an “out of control” jury. The United States Supreme Court historically has issued many protections against “excessive” punitive damage awards. See this excellent law review article by Benjamin J. McMichael.

Less Government is better.

Let’s assume for a moment that the proponents of tort reform are correct in a few key areas such as: (i) health care costs will go down, and (ii) business will thrive more. I should note that these claims are very much disputed. The real question is: “Who decides how much a person’s life, limb or mental health are worth?” Do you trust any of our politicians? I sure don’t. In fact, I think very few of them are qualified to go to the grocery store, much less make critical decisions affecting these very personal and difficult issues.

So…who makes this decision? I tend to trust 12 jurors that are vetted by opposing counsel far more than a politician to determine the fate of either the business or the injured individual.

It’s the Constitution stupid.

The Seventh Amendment to the Constitution reads:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

If someone sues me, may I please have my peers decide the facts of my case? Now, I am not saying the jury system is perfect (as I discuss below), but I want the right to test the facts of a person’s case by a body of my peers from my local community.

Change the Jury, the Judges and the Attorneys.

Now we are getting to the rub of the situation. Proponents are upset, not because of the existing system. They are mad because judges and juries seem to make irrational decisions. They are mad because plaintiff attorneys make big money and sometimes bring bad lawsuits. I suspect proponents of tort reform are equally dismayed when serious injuries receive radically unfair reductions as a result of caps on damages.

One of the key problems is the composition of a jury, not the jury system.

So, why don’t we fix the real problem?

Why attack the result of the problem (i.e. the bad award) when we should be focused on the cancer that causes those irrational decisions? What are the problems?

Problem #1 — Uneducated/Unemployed Juries. I am personally a fan of “professional juries” that have long-standing members that are paid on an annual basis for their service. My vision is a system similar to a military panel whereby several sets of “panels” are formed for a calendar year. These panels rotate among cases and hear all civil cases for the time period with which they are impaneled. The typical makeup of such a jury (at least in my mind) would be:

1. Educated with at least a high-school degree.
2. Sufficient time to serve their commitment.
3. Successful enough to maintain a residence in the county within which they are chosen.

Some powers that should (in my opinion) be granted to the jury:

1. Let the jury ask questions during trial. For jurisdictions that do not allow this power…well, I am still baffled by the lack of common sense that exists.
2. Allow juries to discuss the case during the trial. Yes, most jurors cannot discuss a case among other jurors. Yes, it is a stupid rule.
3. For the love of Pete, please allow attorneys to prepare a “reference” notebook for jurors. People are simply not able to absorb the technical information presented at trial at the pace that it must be presented.

Problem #2 — Elected Judges. To most citizens the idea of electing judges seems reasonable. After all, elections are the basis of a strong democracy. However, there is always an exception to the rule, and the judiciary is just that exception. Why?

1. Judges are accountable to the law, not the people. A judge must have the freedom to read, interpret the law and rule on the law without the distraction or (even worse) the fear of the opinion of the people.
2. Judges must be impartial. Retired Justice Sandra Day O’Connor said it best:

“crisis of confidence in the impartiality of the judiciary is real and growing.” If left unaddressed, “the perception that justice is for sale will undermine the rule of law that courts are supposed to uphold.”

See Justice O’Connor’s more detailed comments here.

Problem #3 — Please, please graduate better attorneys.

44,000 law students graduated in 2013 for an estimated 10,000 jobs. You do the math. This means that a vast majority of those new law graduates are going to do something other than practicing law or they are going to open individual law practices. Listen, I am not here to knock the American dream. I am here to tell you that those law graduates have families to feed, loans to repay and a career to try and make. To do this, they are going to look for cases and try to file lawsuits.

My knock is not on someone wanting to become an attorney. In fact, it is just the opposite. I recommend that attorneys be required to apprentice with a practicing attorney for a period of years. Any aspiring attorney must both graduate from law school and receive the recommendation of at least one licensed attorney before they can be fully licensed to practice law. The attorney that recommends the aspiring attorney must also “mentor” and supervise the aspiring attorney for a period of time after the new attorney’s license is issued. Think of this like a residency program, but for attorneys.

I believe this method does a few things:

1. It allows attorney’s to regulate themselves.
2. It makes an experienced attorney accountable for the conduct of a new attorney.
3. It should instill more wisdom in young attorneys and (hopefully) reduce lawsuits that probably should not be initiated.

At the end of the day, I think most American’s desire fairness. We believe and want people to be compensated for injuries caused by others and we want the responsible party to pay…fairly.