08192017Headline:

Boston, Massachusetts

HomeMassachusettsBoston

Email Ken Margolin Ken Margolin on LinkedIn Ken Margolin on Twitter Ken Margolin on Facebook
Ken Margolin
Ken Margolin
Contributor •

Real Tort Reform

Comments Off

I grudgingly give credit where it is due. The insurance, big corporate cabal, has run one of the most brilliant public relations campaign in the history of duping the American public. Their first ploy was the one most essential in any media campaign – they captured the linguistic high ground. Everyone believes in reform in the abstract, and the forces who want to eliminate the rights of Americans injured by corporate and professional negligence, made the phrase “tort reform” their own.

Even plaintiffs lawyers who should not be lulled, rail against “tort reform,” unwittingly granting the phrase to the anti-justice movement. During the last decade or so, the anti-justice forces have persuaded millions of Americans, potential jurors all, that fairly compensating victims of corporate greed or medical incompetence, handicaps this country in the global marketplace, and is almost anti-American. The anti-justice group has pounded out an ongoing message that many plaintiffs are frauds and cheats; this big lie has caused many jurors to impose a mental barrier of mistrust that legitimate plaintiffs must overcome. Worst of all, the anti-justice campaigners have achieved real success in many state legislatures, limiting the rights of victims of even grotesque medical malpractice or defective products.

The much maligned plaintiffs’ bar took awhile to gain momentum in its counter-campaign, but has now gained some traction, has stemmed the bleeding, and has the chance to reverse some of the worst affronts to elemental fairness. Real tort reform would acknowledge the greatness of the jury system, with its occasional flaws and all, would respect our own great justice system, and would elevate the common man back to equality with the wealthy and powerful.

Here is what a real tort reform platform would look like: (1) roll back the disgraceful legislation that limits compensation for pain and suffering to people whose quality of life has been impaired by the negligence of others; (2) repeal as well statutes that interfere with the right to contract by limiting attorneys fees, as a cynical way to make it impossible for many victims of negligence to find attorneys able to afford accepting their cases; (3) impose harsher penalties on the common defense tactics of withholding documents, over-cueing defendants during depositions, and abusing the discovery process to wear down plaintiffs; (4) provide enough money for state court systems so that any tort victim can be assured of a trial within 36 months – a modest goal, still beyond the reach of many plaintiffs in many states; (5) expand, not contract, the ability of juries to award punitive damages when they find gross negligence or intentional disregard of dangers in products or practices.

That’s tort reform. What the other guys are selling is an anti-justice campaign, which is the label we should give it, in a message we should tenaciously spread to the public.