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THE BASICS

WHO PAYS?

Don't high jury awards ultimately come out of my pocket?
Aren’t my health insurance premiums high because too many people sue doctors?
Won’t doctors leave my state unless we stop lawsuits with “tort reform” laws?

WHY SHOULD I CARE?

Why are tort lawsuits important?
Why does the civil justice system need “protecting”?
How do lawsuits make me safer?
If corporations can’t be sued, does that mean that they’ll provide more jobs or that our economy will improve?

WHAT DO CIVIL JUSTICE AND “TORT REFORM” HAVE TO DO WITH THE ISSUE I’M PASSIONATE ABOUT?

Discrimination
Environmental Harm
Corporate Crime
Violent Crime
Human Rights

THE BASICS

  • What is the civil justice system?
    If someone is killed or injured due to another’s wrongdoing, a civil lawsuit can provide financial compensation to the victim or their family. Filing a lawsuit within the civil justice system may be the only way a harmed victim is able to achieve some form of justice, directly holding accountable an entity that caused them harm. And if someone is seriously injured, compensation from those responsible means victims do not have to rely on taxpayer-funded government programs to survive. In addition, civil lawsuits deter unsafe practices by supplying financial incentives for companies to operate safely; provide a forum where evidence of misconduct can be forced out into the open as well as the disclosure of internal information vital to protecting the public’s health and safety; and allow for the evolution of written precedents, which develop individual rights and restrain abuses. When disputes are resolved outside the civil justice system - without trial and without a public record - wrongdoers can prolong misconduct and suppress information about dangerous practices. In other words, the civil justice system protects us all, whether or not we ever go to court.

  • What is a “tort”?
    A tort is harm that a company or a person causes you, either on purpose or because they are negligent. If you are injured and can prove their culpability, you can sue them for compensation. This is sometimes called a “personal injury lawsuit.”

  • Aren’t personal injury or “tort” lawsuits flooding the courts?
    No. Tort cases make up only about 6 percent of the entire civil court caseload. By contrast, contract cases (often filed by businesses against consumers or other businesses) “dominate the civil landscapes,” comprising 44 percent of state court civil caseloads.

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  • What’s “tort reform”?

    “Tort reform" laws make it more difficult for injured people to sue in civil court, or limit the power of judges and juries to make decisions in tort cases. The word "reform" is a complete misnomer. These laws take away people's rights to access the courts and be properly compensated, and they undermine the constitutional right to jury trial. That is why many courts have found them unconstitutional. They are anti-victim, anti-consumer, anti-jury, and make it more difficult for everyday people who are harmed by corporate or professional misconduct to survive.

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  • Won’t “tort reform” stop “frivolous lawsuits"?
    Tort reform laws have nothing to do with frivolous lawsuits. Tort reform laws (such a limits on compensation, or “caps”) apply across the board to all cases, not just ones deemed “frivolous.” They apply no matter how much merit a case has, the extent of the misconduct or severity of an injury. Those most hurt by “tort reform” tend to be the most catastrophically injured.

  • Is it easy to file a lawsuit?
    No. To bring a lawsuit, someone must be a fault, there must be an injury or some harm caused, and there must be facts to support your side of things. Sometimes, all the facts are not known. A lawyer can help find out these facts, but since gathering facts may cost time and money, not every case can go forward even though a claim may be just. That is especially true in states that have enacted “tort reforms,” since many of those laws create unfair legal obstacles preventing legitimate cases from going forward.

  • Don’t lawyers have an incentive to file frivolous cases?
    No, the opposite is true. People filing lawsuits do not pay hourly fees to lawyers. They pay on a “contingency” basis. The attorney gets paid only if the case is successful and is then paid out of the judgement (typically 1/3). Therefore, attorneys hired on contingency must be very selective in the cases they take. Also, rules are already in place so that if a frivolous case is filed, a judge can throw it out and sanction the attorney. In other words, no trial lawyer can afford to bring baseless cases. The contingency fee system is important system for another reason: it allows sick and injured people to hire an attorney without paying any fees up front, thus providing them with access to the courts.

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  • Does the “contingency fees” system cut down on “frivolous” lawsuits?
    Yes. Most law firms are small businesses and like any other small business, they can’t take many financial risks - like taking cases they don’t think they can win. That means they cannot afford to take frivolous lawsuits.

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  • But isn’t it easy to “win” money in a lawsuit by forcing the other side (usually an insurance company) to settle?
    No. Insurance companies do not settle frivolous cases. For example, Duke University Law Professor Neil Vidmar found in his research: “In interviews with liability insurers that I undertook in North Carolina and other states, the most consistent theme from them was: ‘We do not settle frivolous cases!’ The insurers indicated that there are minor exceptions, but their policy on frivolous cases was based on the belief that if they ever begin to settle cases just to make them go away, their credibility will be destroyed and this will encourage more litigation.”

  • But aren’t people running to court all the time and filing frivolous lawsuits in hopes of winning a “jackpot”?
    No. Contrary to popular myth, few injured Americans file lawsuits. A Rand Institute for Civil Justice analysis of how many injured people file lawsuits found that only 10 percent of injured Americans even file a claim for compensation, which includes informal demands and insurance claims. Only two percent file lawsuits. Medical malpractice cases are even more expensive and difficult to pursue. Even Victor Schwartz of the American Tort Reform Association has said, “It is ‘rare or unusual’ for a plaintiff lawyer to bring a frivolous malpractice suit because they are too expensive to bring.” (Mark A. Hofmann, “White House open to medical liability changes,” Business Insurance, January 30, 2011.)

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  • But what about that McDonald’s coffee case? Wasn’t that frivolous and didn’t that woman get millions of dollar for spilling hot coffee on herself?

    No. The facts of that case are: Stella Liebeck, 79-years-old, was trying to remove the lid on her coffee when it tipped over, pouring scalding hot coffee onto her. McDonald's sold its coffee at 180 to 190 degrees even though the Shriner’s Burn Institute in Cincinnati had published warnings to the franchise food industry that its members were unnecessarily causing serious scald burns by serving beverages above 130 degrees. When Ms. Liebeck was burned by the coffee, McDonald's coffee had already burned more than 700 people, including infants. Liebeck received third-degree burns over 16 percent of her body, necessitating hospitalization for eight days, whirlpool treatment for debridement of her wounds, skin grafting, scarring, and disability for more than two years. Despite these extensive injuries, she offered to settle with McDonald’s for $20,000. McDonald’s refused to settle. The jury awarded $2.7 million in punitive damages for McDonald’s callous and willful conduct. The trial judge reduced the punitive damages to $480,000. Subsequently, the parties settled confidentially for less.

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WHO PAYS?

Don't high jury awards ultimately come out of my pocket?
No. Jury awards are covered by the insurance policy carried by the negligent company or professional. Even if a jury award is high, it is extremely rare for actual payment to the injured victim to exceed that policy limit. It should be no surprise that the insurance industry would prefer to pocket money that should go to victims. That is why the insurance industry is so anxious to pass “tort reform” laws, which allow it to reduce payments to victims. It is also why, since the 1950s, the insurance industry has tried to convince Americans that jury verdicts affect jurors’ pocketbooks through higher insurance premiums. They have also tried to argue that putting legal roadblocks in the way of injured people, i.e. “tort reform,” is the only way to reduce high insurance rates. None of this is true. Insurance companies make their money from investment income. Industry insiders have admitted over and over that insurance industry business practices, especially the investment cycle (fluctuations in the stock market and interest rates) are to blame for sharp ups and downs in insurance rates, not jury verdicts or the legal system.

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Aren’t my health insurance premiums high because too many people sue doctors?
No. Costs involved in lawsuits against health care providers for medical malpractice are only a tiny percentage of the total health care costs and have no effect on health insurance premiums. The Congressional Budget Office found that if you enacted an entire menu of extreme “tort reforms,” including many that would prevent legitimate cases from going forward, the savings would be only 0.5% of health care costs.

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Won’t doctors leave my state unless we stop lawsuits with “tort reform” laws?
No. “Tort reform” does not improve access to care and physician shortages result from factors having nothing to do with liability. A 2021 book published by the libertarian and free market think tank, Cato Institute, found no evidence that physicians choose to practice in a state because the state caps damages, noting, “Physicians’ location decisions simply do not seem to respond very much to damage caps." Many studies show that if there are “access to care” problems, the reasons for this are unrelated to malpractice.

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WHY SHOULD I CARE?

Why are tort lawsuits important?
Lawsuits and the “tort” system are important for several reasons: they help compensate those injured by corporate or professional recklessness; they protect us all by supplying financial incentives for companies to operate safely; and they provide a forum where evidence of misconduct can be forced out into the open.

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Why does the civil justice system need “protecting”?
The right of injured people to go to court and collect compensation from the perpetrators of their harm is one of the great achievements of American democracy. In our system, the poorest and most vulnerable, including those who are in need of medical care or are the disrupted families of sick and injured children, can challenge the largest corporation or government agency and hold them accountable for causing harm. But for 50 years, this system has been an embattled and vulnerable institution. The power and authority of civil jurors, who cannot be wined, dined and bought-off by corporate lobbyists, represent a tremendous threat to the corporate and wealthy power structure in this country. This is why the civil justice system needs protection. We all need the system to stay strong because without civil lawsuits, there would be even fewer checks on corporate misbehavior, injured people would have to rely on government health and disability programs to survive (i.e., taxpayers would end of paying for what a wrongdoer does), and the public would be kept in the dark about much corporate abuse and negligence.

How do lawsuits make me safer?
The possibility of a lawsuit deters reckless manufacturers, builders, unsafe hospitals and other wrongdoers from repeating their negligence or misconduct, and gives them the proper economic incentive to become more safe and responsible. In cases where criminal laws are violated but are not properly enforced, the potential for a civil lawsuit can become a more effective deterrent than criminal sanctions.

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If corporations can’t be sued, does that mean that they’ll provide more jobs or that our economy will improve?
No. Corporations that can’t be sued will become more dangerous, that’s it. Weakening liability laws for reckless corporations won’t bring back jobs or even keep them. For example, Michigan decided to completely immunize drug companies that produce unsafe drugs. The business lobbies argued they needed the law to encourage drug companies to stay in Michigan. No other state has such a law. No sooner did the law pass than pharmaceutical jobs started leaving Michigan by the hundreds because of changes in that industry. One thing had nothing to do with the other.


An Economic Policy Institute (“EPI”) study found, “There is no historical correlation between the inflated estimates of the costs of the tort system and corporate profits, product quality, productivity, or research and development (R&D) spending. Evidence suggests that the tort system, without the proposed restrictions, has actually been beneficial to the economy in all these areas.”  Moreover, says EPI, “significant tort law change would be more likely to slow employment growth than to promote it. Endlessly repeating that so-called ‘tort reform’ will create jobs does not make it true.”

WHAT DO CIVIL JUSTICE AND “TORT REFORM” HAVE TO DO WITH THE ISSUE I’M PASSIONATE ABOUT?

Discrimination
Successful civil lawsuits directly respond to the needs of those harmed by discrimination and harassment by providing financial compensation for losses. Often a lawsuit provides the only effective means to expose and end discrimination and harassment. In some cases lawsuits put dangerous entities like hate groups out of business. “Tort reform” laws, which reduce the power and authority of civil juries, weaken a crucial forum for obtaining justice in civil rights cases.
Successful civil lawsuits directly respond to the needs of those harmed by civil rights violations by providing financial compensation for losses. Often a lawsuit provides the only effective means to expose and end discrimination. In some cases lawsuits put dangerous entities like hate groups out of business. “Tort reform” laws, which reduce the power and authority of civil juries, weaken a crucial forum for obtaining justice in civil rights cases.

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Environmental Harm
Lawsuits by those who are sick and injured by pollution play a critical role in enforcing environmental laws and regulations. Today's environmental agencies, which lack resources and are often captured by the industries they are supposed to regulate, do not adequately monitor polluters. They rely heavily on self-reporting by industry, a situation that less responsible businesses can exploit to their advantage. Also, some sources of pollution have always escaped control. Lawsuits by the sick and injured play a critical role in filling in these enforcement gaps by holding polluters accountable for harm.

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Corporate Crime
Failure to criminally prosecute corporations with records of harm, fraud and abuse is the rule rather than the exception. There are many reasons for this, most linked to either the lack of financial resources or the political will by prosecutors to challenge large, powerful companies. In addition, sanctions available to prosecutors, often civil fines, can amount to nothing more than slaps on the wrist for big corporations. For most victims of corporate crime, the civil justice system remains the only tool for holding accountable companies that recklessly cause harm. In addition to compensating victims, lawsuits can police the dangerous practices of individual companies or entire industries.

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Violent Crime
Compensating survivors of violent crimes for their losses is an important function of the civil justice system. The criminal justice system is not designed to do this. For many crime victims, civil litigation against the perpetrators and responsible third parties is the only way they are able to achieve some form of justice and move on. Laws that make it more difficult for crime victims to sue, so-called “tort reforms,” not only hurt crime victims, but also make society less safe.

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Human Rights
When it comes to helping victims of human rights violations, the United States has the best and, under some circumstances, the only laws available for survivors to obtain some sort of redress and compensation and to hold abusers financially accountable in court. U.S. laws and U.S. courts often permit civil remedies against human rights violators, including individuals, corporations and foreign governments. These lawsuits by victims are important because most human rights violators will never be criminally prosecuted and, even if they are, prosecutions provide no opportunity for victims to be compensated for their injuries.

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