In Defense of Lawsuits

May 4, 2016

By
Richard L. Newman, J.D.

It isn’t easy to overcome blind prejudice.

It isn’t easy to respond to anonymous attacks.

And yet sometimes, respect for the truth, and love for our system of law demand that we speak up.

Or, as President Reagan once put it, “there you go again.”

For years the American Chamber of Commerce has waged a war against the civil justice system. It is, after all, no big secret that the American Chamber of Commerce hates trial lawyers, and tort law; hates, in fact, the very idea of a system which hold wrongdoers accountable for causing injury, harm, and death.

Their teams of lobbyists work to restrict access to the courts, and lessen accountability; often by attacking the very legal system itself. For an in-depth look at this ongoing process, please read The Influence Machine, by Alyssa Katz (Spiegal & Grau, 2015), which documents the efforts of the Chamber of Commerce to distort and damage our legal system, as part of a larger strategy to control the American economy.

The most recent example of this effort to limit the power of the law is the unsigned attack article titled “Ralph Nader, Apologist for a System Abused by his Allies.

It’s an odd article.

It was written in response to an article by Ralph Nader that appeared in the April issue of Harper’s Magazine, titled, “Suing for Justice: Your Lawsuits are Good for America.” In that article, Nader points out and proves just what the title suggests: Lawsuits have made this country healthier, and safer; the tort system is an effective means of policing corporate and governmental misconduct.

The jury system is best in the world. Everything is on the record, every witness is subject to cross-examination, everything is open to the public, and any mistake can be corrected on appeal. And the verdict – the amount the defendant has to pay – is decided, not by the judge, not by a so-called expert, not by a bureaucrat, but by the jury, made up of citizens from the community, who have each been selected by the parties to the lawsuit. Both sides to the lawsuit have lawyers to represent them. Finally, tort law has adopted the concept of comparative fault, meaning that the wrongdoer only pays the damages that it caused, and not for the wrongdoing of the injured plaintiff. What could be more fair?

And yet, the poor Chamber of Commerce somehow thinks that the deck is stacked in favor “of a select group of opportunistic plaintiffs’ attorneys.”

More specifically, the central point appears to be that “In a long and meandering piece for Harper’s Magazine . . . Ralph Nader . . . fails to acknowledge (and, in fact, tacitly shows approval for) the fact that our courts have been hijacked by players who abuse the system.”

What?

Well, the author points out is that, years ago, a few lawyers abused the system. And that’s correct. But what the article doesn’t point out that the legal system itself caught these bad guys, and held them accountable, just as the system holds other wrongdoers accountable. So, if the only point was to say that the legal system isn’t perfect, there would be no argument. But that’s not really it, of course. The article is just the latest in the Chamber’s ongoing effort to weaken a time-tested and fair system, in order to escape accountability.

The reality is, though, that tort law, and trial by jury are far better than any of the alternatives that the Chamber of Commerce has been touting.

What the article overlooks is the tremendous benefit to all of us resulting from lawsuits, and the very low cost of the protection to our health safety and welfare afforded by the tort system.

Using tort law, trial lawyers have fought, and continue to fight against dangerous products, and a polluted environment. Because of the work of trial lawyers, and the courage of juries, made up of everyday citizens, unsafe products like the Ford Pinto have been recalled. Because of the courage of juries and work of lawyers, McDonald’s stopped selling super-heated coffee, which had burned and scalded hundreds of people. Because of the vision of trial lawyers, tobacco companies have paid billions of dollars to state governments to fund public health programs, and have been forced to stop targeting ads at kids. As Nader notes in his article, “Following litigation and its disclosures, companies fearing lawsuits and higher insurance premiums were forced to change their injurious practices. . .”

And the corporations, and the corporate law firms, and the Chamber of Commerce hate that; hate being held accountable.

But what’s worse, from the Chamber of Commerce’s standpoint, is that these lawsuits not only held the wrongdoers accountable; they also revealed that the corporate defendants had acted knowingly, and intentionally proceeded with conduct that they knew would injure or kill people.

So the Chamber and its allies have attacked the civil justice system over and over. As Nader points out in his article, the Chamber has used lavish political donations and false alarms about the fictitious “litigation crisis,” in an effort to repeal laws that protect the right of injured people to receive adequate compensation, and to escape accountability. This has resulted in caps on damages, which limit the right of people to receive full compensation for pain, suffering, scarring, paralysis, etc., no matter how grievously they have been injured.

At the same time, the Chamber has fought to prevent injured people from banding together to file class actions, even though such class lawsuits are an efficient way to use judicial resources.

Recently, the Chamber has championed mandatory arbitration provisions in contracts. Very often these “waive the liability of vendors and surrender the right of consumers to a trial by jury in favor or private arbitration, that usually favors the vendors.” What’s worse is the cost: In a tort lawsuit in court, the injured party pays his or her attorney a fee only if there is a recovery. But under the mandatory arbitration clauses favored by the Chamber of Commerce, the injured party must pay a share of the “hefty hourly fee of arbitrators, those private judges whose awards, which generally cannot be appealed, lean toward the companies that can give the arbitrator repeat business.” And it’s too bad if the arbitrator gets it wrong – the decisions are usually final, and can’t be appealed.

What this strange article glosses over, is the real benefit of the justice system. For example, the article quotes Matt Webb, the institute for Legal Reform’s Vice President of Legal Reform Policy, that “Arbitration offers a simpler, fairer and faster way to resolve disputes than going to court. On the other hand, class action lawsuits are often driven by plaintiffs’ lawyers who stand to gain millions of dollars. . .”

Costly, forced, binding, non-appealable arbitration is fairer? Really?

And does the Institute think that plaintiff lawyers just wave a wand and magically receive millions of dollars? No, the reality is that the fees won by plaintiffs lawyers are earned. The lawyers have satisfied judge and jury that the defendant acted wrongly, and the verdict or settlement is way of holding the wrongdoer accountable. There’s that word again: Accountability.

That is what this fight is all about. The Institute for Legal Reform would dearly love to let the wrongdoers escape accountability.

So here is one final question: Given how hard the Chamber of Commerce works to weaken, undermine and limit our justice system, what did the (unknown) author of this article mean when he or she wrote that “America has the greatest legal system in the world?”

Richard L. Newman is the executive director of the American Museum of Tort Law, in Winsted Connecticut.

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