Tort “Reform” Is A Generous Word

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Tort reform, tort reform, tort reform. So, what is it? Well, it depends who you ask. If you ask the owners of large corporations (and their friends, colleagues and attorneys), they’ll tell you that tort reform is a series of measures employed to protect industry, corporations and insurance companies and enhance competitiveness in a global market. Sound familiar? It should. That’s the response and justification given for everything that big companies ask for—who would argue with protection and enhancement? Trial lawyers argue the reality of the situation, and unfortunately, they have developed a tainted reputation in the process of doing so.

Trial lawyers, and their friends and colleagues argue that tort reform is limiting, unfair and ungrounded. Tort reform often includes hard caps on damages that can be awarded to victims of torts such as auto accidents, medical malpractice, product malfunction, and so on. Caps, in the states in which they exist, basically say that no matter what kind of injuries you sustain, and how much economic hardship you undergo as a result of the injuries, there is only a set, certain amount of money that a jury of your peers may award you. No matter what the circumstances are.

Tort reform? Reform sounds like an awfully nice word, doesn’t it? Ralph Nader, a strong opponent of the notion, thought so, too. That’s why he prefers to call it tort “deform.” Many take Nader for an outspoken fool. Why trust what he has to say about tort reform when what he champions is usually wildly unpopular in the face of industry? Look at history. Maybe, just maybe, he’s got the right idea. Nowadays, we take seatbelts for granted—we even enact laws penalizing folks who choose not to wear them. But once upon a time, the auto industry and their lawyers argued that requiring cars to come equipped with seatbelts was un-American and too invasive. Nader thought otherwise. He wrote books, gave speeches, and demanded that the auto industry do more to protect Americans. In the end, his wisdom prevailed, and we have him to thank for the safety of the American motorist.

Still feel weird siding with the trial lawyers? Don’t feel bad yet—most people do. In fact, many see opposing big business and supporting the civil trial by jury system as unpopular and difficult to sustain. I thought so, too. But here’s what Ralph Nader said a few years ago: “The right thing and the hard thing are usually the same thing. How popular do you think the civil rights movement was when it started?” He was and is absolutely right. Tort reform is unfair. How can the government mandate a universal cap to apply to every civil tort suit, when every civil tort suit is unique? It just doesn’t make any sense.

Most people view civil tort suits as frivolous in nature and in volume. Agreed, there surely are some frivolous lawsuits filed because people see their injuries as a get-rich-quick scheme. But does that mean that the government should penalize everybody, even the people who really do need the compensation? If that seems wrong to you, it should. Similarly, there are bad drivers on the road, but does that mean that the government should say that there are only a certain number of cars allowed to be sold in the US? Or, that only a certain number of restaurants can be opened because there are cases of food poisoning here and there? Just as hindering business is contradictory to our nation’s fundamental framework, so is paralyzing our legal system.

The rights of the everyday person to have a matter heard a jury of their peers was a right guaranteed to Americans during the formation of this country. It’s why people came here in hope of freedom two hundred and twenty-five years ago, and it’s why they still come here today.

As for tort reform enhancing business competitiveness, well, that notion is easily refuted. If a child misbehaves in school, how do you correct their behavior? You punish them, and you show them what they did wrong. You don’t let them run wild in the hopes that they will figure out how to become a normal member of society on their own. Now, you might say it’s impractical to draw a connection between titans of industry and schoolchildren, but when you look at the debate regarding tort reform, it’s hard not to draw the comparison. What better way to make businesses more competitive than to make them pay for their wrongs—money is important to them and that’s exactly why awarding appropriate damages to their victims will correct their behavior and make them more competitive.

So, before you demonize trial lawyers, sit down, learn all of the facts, and discuss the issue with those involved. And maybe enjoy a cup of coffee while doing so—just make sure it’s not too hot.

Questions? Comments? Contact the Law Offices of Aronberg & Aronberg at 561-821-4087 or email us at