As an oft-repeated adage goes, you can sue anyone in America—even a ham sandwich. But in the real world is that actually true?
On a recent Saturday in his hometown of Winsted, Connecticut, famed consumer advocate Ralph Nader hosted a small meeting of attorneys to sound an alarm bell: The constitutional right of Americans to sue for injury has eroded in recent years to a point of crisis that trial lawyers can no longer ignore.
“There is an urgent crisis here where the law that is designed to protect the health and safety of the American people and deter wrongdoing is being destroyed,” Nader said in the board room at his American Museum of Tort Law. “Trial cases before juries are declining. Verdicts in most cases are declining, and the number of cases being brought under tort law are declining, despite a growing population.”
Nader underscored his point that Connecticut trial attorneys are not paying enough attention to the trend by pointing out how many lawyers had not accepted invitations to gather at the museum. Of more than 1,200 lawyers invited by email and nearly 200 contacted by phone, just three showed up for the presentation, which was video-recorded.
Solo practitioner Ken Krayeske of Hartford, who accepted the invite, agreed there are increasing barriers that prevent some people from even seeking justice in the first place. “As I explore medical malpractice, I see the hurdles that Ralph talks about,” he said. That includes the well-known 52-590a state requirement for a “good-faith” medical letter to justify taking a medical malpractice case to trial. “This week I read about six cases where legitimate medical malpractice cases were dismissed because the plaintiffs attorney did not precisely follow the 52-590a letter, which places form over substance. People are unable to get recompense for their injuries.”
Lincoln Woodard, president of the Connecticut Trial Lawyers Association, said he agrees that Americans are facing increasing threats to their constitutional right to a jury trial, including a highly publicized push by the U.S. House of Representatives to enact tort reform in June. “I think that access to the civil justice system—specifically the jury system—is something we guard very closely,” Woodard said. “We feel very strongly that we need to protect that. Access to justice is our organization’s mission.”
Woodard pointed out that ensuring that access was among the top issues at the American Association for Justice’s annual convention earlier this month in Denver. “Corporate interests are constantly trying to create new ways—some more overtly than others—to prevent individual access to the court system,” he said. “I think that their general thinking is that we would be better off with barriers to entry into the jury system. They don’t care about it as much as we do.”
That way of thinking, Woodard said, ends up with individual workers and consumers signing contracts with arbitration clauses that limit their ability to sue when they are wronged. American Museum of Tort Law Executive Director Rick Newman said that amounts to people being duped into relinquishing their constitutional rights. “Jury duty is the most direct form of government we have,” he said. “It is much more direct than voting for state representative. It is direct democracy in action. It is important and it is worth preserving.”
Newman added that the system is “under tremendous assault, and it has been for 35 or 40 years. One of the erroneous beliefs is that the system is somehow broken, with frivolous lawsuits, greedy lawyers and runaway juries.”
Nader called that belief system “a Trumpian myth, garnished with campaign contributions,” and predicted that a dip in the stock market or some other wave of negative news will bring on a new wave of attacks on civil justice. “This is an extremely precious part of our democratic society and system of justice, and it is under massive attack,” he said.
Nader’s biggest bone of contention with trial lawyers’ organizations, he said, is that they are not paying enough attention to the continuing crisis. He said low turnout at his recent event was a sign that trial lawyers are afraid to admit weakness, and are keeping their heads in the sand. “Sometimes it takes a public embarrassment of the bar to get them moving,” Nader said. “They are demoralized and discouraged. Most of them don’t make that much money and most of their potential clients never reach them because they are not educated about the law of torts in high school and college. Trial lawyers across the country are complaining about lower memberships and tighter budgets, and they’re feeling overwhelmed.”
The answer, the consumer advocate said, is to fight back. “We have to turn the corner. When things get rough, the tough get going. That’s what this meeting is all about.”