As trial lawyers, we are constantly bombarded with cries for “tort reform” from politicians, mega-corporations and insurance companies each and every day. Quite frankly, we have become immune to some extent, acknowledging that battling the proliferation of anti-victim and anti-trial lawyer policies has become part of our role as advocates for victims’ rights. However, how many of us have consciously asked ourselves: What does the phrase “tort reform” really mean to the public? More importantly, how do we educate the public about these issues?
The defense industry has invested millions of dollars into conservative tort reform advertising and lobbying in Pennsylvania alone. Admittedly, public opinion on many hot tort reform topics such as capping victims’ noneconomic damage awards has clearly swung in their favor.
Talk to members of the public about our civil justice system and you’ll hear them use terms like “medical malpractice crisis,” “frivolous lawsuits” and “rising insurance rates.” Most people have been conditioned to blame us or our clients for causing these perceived problems. Does the growing sentiment for some of these conservative, pro-big business ideals come from the public’s true understanding of the issues and the motives of those who champion them?
Unfortunately, I submit that most people do not possess the true facts necessary to create informed opinions on these issues. HBO’s documentary “Hot Coffee” showed that sample members of the public cannot define the term “tort.” Practically speaking, it may be unfair to expect people to define esoteric terms against the backdrop of a political campaign run by lobbyists and lawyers for the insurance defense industry. It follows then, that we cannot expect the public to fully understand “tort reform” as we do.
Nonetheless, members of the public certainly hold opinions regarding our civil justice system and can certainly repeat the rhetoric calling for changes to it. We must remember that the people in the public holding these beliefs eventually become our jurors. Thus, it has become our obligation to educate the public on the issues making up the tort reform battle we fight on our clients’ behalf. Finding ways to educate the public about our tort laws and our civil justice system has become a difficult task.
Of course, a trial lawyer uses the jury trial as his or her primary means of educating people, and without question, the trial by jury is probably the best opportunity to formally do so. Undoubtedly, trial lawyers work hard in the courtroom to educate juries. I ask, though, “Do we work as hard outside the courtroom to educate the people who could one day become our juries?”
For instance, in a busy personal injury practice, how many opportunities do we really have to try cases? The typical personal injury lawyer handles a variety of automobile, premises liability, worksite and other general injury cases. Most of us today rely on a volume practice to some extent, wherein our livelihoods depend on successes — not always in the courtroom, but at the proverbial “negotiating table.” With so many cases settling without the help of a jury, when do we, as “trial lawyers,” the advocates for injured people, get our best opportunity to educate the public about the unfairness of the expression “tort reform”?
If you are like me, you probably try to separate your professional life from your personal life, to some extent. Still, the opportunity arises frequently to educate friends, family and other acquaintances about the truth behind the defense industry’s claims for tort reform. Despite the desire to separate our professional lives from our home lives, educating the public about the necessary benefit that personal injury lawyers serve to the general public cannot be set aside.
To some extent, we are fortunate that people won’t let us forget what we do for a living. Like it or not, when someone knows you are a lawyer, he or she will ask you a legal question. It happens all the time.
Inevitably, after hearing you are a lawyer and specifically, an injury lawyer, they’ll ask you about the McDonald’s hot coffee case or make a crack about chasing after ambulances or even about being responsible for chasing away physicians, just to name a few. These instances open the door to educate.
When people make comments about our tort system, do they really believe it needs reform or are they just repeating what they’ve heard in the media? For instance, do people really know the facts of the McDonald’s hot coffee case? Do they realize that injury lawyers are prohibited from directly soliciting individual clients, but that auto insurance companies have adjusters who can and do chase after victims of auto injuries — often when these folks are still recuperating in the hospital? Do they know that in Pennsylvania, the number of medical malpractice suits filed over the last few years is lower than ever, as are doctors’ malpractice insurance rates?
When people repeat the claims of the tort reformers in conversations, we need to invite them to look at the real facts. We need to point out the problems with mandatory arbitration clauses that are hidden in the agreements that members of the general public sign everyday with large corporations, e.g., credit card and cell phone contracts. We also need to point out the irony that large corporations and their supporters have been known to use arbitration clauses against the public, but then oppose them in the contracts they sign in their own business affairs!
This very fact was highlighted in an AAJ News Brief recently, quoting West Virginia Association for Justice President Paul Farrell Jr., when he noted that a West Virginia gubernatorial candidate publicly campaigned in favor of keeping cases out of the courtroom through arbitration, yet he filed a lawsuit seeking damages from a jury against a group of city officials. Further, recent changes to our joint and several liability laws pose another challenge for the public to fully understand.
The “Fair Share Act” may be a terrific public-relations term, but do we really believe that the public thinks it’s “fair” that innocent victims now cannot recover full damages from some of the corporate entities that hurt them? Does the public understand that this new law transfers the costs of others’ negligence from the negligent party to doctors, hospitals or Medicaid? As my colleague Larry Coben wrote in a recent article in the Intelligencer , “The portion of the loss that is not paid by a tortfeasor is borne by the commonwealth and all taxpayers. This is of the greatest concern: No one seems to have addressed the huge shift in financial responsibility that would result from this change in our law.”
Change comes slowly, particularly in our legal system. Trial lawyers must continue to talk about the issues and educate the public about the fallacies of “tort reform.” We need to encourage folks to watch documentaries like HBO’s “Hot Coffee.” We need to encourage people to get into the courtroom to watch jury trials. Posing questions to the public about their understanding of concepts they may have heard cloaked under the guise of tort reform should provoke thought, interest and introspection. Since most of us don’t get to talk to juries every day, we need to talk to people in our everyday lives. It is imperative that people hear the truth. •