POP TORT—The
Pop Tort is a creative blog project from consumer advocates at the Center for
Justice & Democracy at New York Law School.
It highlights consumer rights issues in layman terms. Go to the group’s website and read many of
the issues they’ve taken on.
http://www.thepoptort.com/
If you truly understand
what a legal “tort” is then there is no need for you to keep reading, but if
you’re like me appreciate a refresher course here you go.
What is the Center for Justice
& Democracy and what does it mean to me?

Over the past decade,
CJ&D has grown into an organization of talented staff working in two
different offices. CJ&D has released hundreds of studies, White Papers and
fact sheets on civil justice issues, presented testimony before Congress and
state legislatures, and helped organize countless press events advocating the
rights of consumers and patients.
In 2011, CJ&D entered
into an exciting partnership with New York Law School, and became known as the
Center for Justice and Democracy at New York Law School. One notable aspect of the partnership is
CJ&D's two-semester project-based learning course at NYLS, called Civil
Justice Through the Courts. Students
work on various projects, including researching and analyzing cutting-edge
civil justice topics, preparing advocacy papers for CJ&D and the consumer
rights community, and preparing policy papers for Congressional
presentations.
"We are looking
forward to the numerous ways that our affiliation with CJ&D will stimulate
us to think about the problems of civil justice and provide opportunities for
our students to connect to lawyers in the field," said NYLS's Dean. In addition to providing a wonderful
opportunity for NYLS students, the collaboration will greatly enhance
CJ&D's work furthering public appreciate for tort law and the civil justice
system.
Through groundbreaking
research and legal analysis, grassroots mobilization and effective advocacy,
CJ&D is fighting to protect the civil justice system.
THE BASIC QUESTIONS AND ANSWERS
What does “civil justice” mean?
When you go to the police
to get justice because someone has committed a crime against you, you’re
seeking criminal justice. A criminal penalty is the outcome. When you sue
someone in civil court to seek compensation because someone has caused you harm
(see TORT), then you’re seeking civil justice. The civil courts and their
fundamental components – judges, juries, lawyers for both sides – all work
together ideally to ensure civil justice.
What’s a “tort”?
A tort is harm that a
company or a person causes another person either on purpose or because they are
negligent. When someone files a lawsuit over a “tort” -- with the goal of
getting compensated for harm -- this is sometimes called a “personal injury
lawsuit.”
Aren’t these personal injury or “tort” lawsuits
flooding the courts?
No. Tort cases make up only
6 percent of the entire civil court caseload and they are decreasing. The
National Center for State Courts shows a 21 percent decline in tort filings
from 1996 to 2005.
Learn more here
What’s “tort reform”?
“Tort reform” refers to
laws that benefit the corporate sector. These 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.
Read more about some common
ones here
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, which is an important system because it provides injured
people with access to an attorney without requiring that they pay fees up
front. Only if the case is successful is the attorney paid - from a percentage
of what is won, usually 1/3. Therefore, lawyers must be very selective in the
cases they take – they cannot afford to take cases they do not believe they can
win
Learn more about
contingency fees here
Moreover, judges throw out frivolous
cases and can sanction lawyers who bring them.
And as explained above, the contingency fee system acts to screen out
baseless lawsuits. Researchers have looked into this, as well. For example, the Harvard School of Public
Health studied medical malpractices cases and found no evidence of frivolous
cases, stating “[p]ortraits of a malpractice system that is stricken with
frivolous litigation are overblown.”
Learn more here
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.
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 “lottery”?
No. According to the Rand
Institute for Civil Justice (partly funded by insurance companies), each year
one in six Americans sustains an injury serious enough to cause some economic
loss. But only 10 percent file a claim, which includes informal demands and
insurance claims. Only two percent file a lawsuit. The study concludes that
these statistics are at odds with any notion that we live in an overly
litigious society.
Learn more here
Aren’t juries too sympathetic to injured people and
give away too much money?
No. While most cases
settle, once a case goes to trial, a plaintiff (someone who files a lawsuit)
wins only about half the time. That is not because the case was frivolous, but
because cases are hard and expensive to win and because juries tend to be much
harder on people who sue than is generally believed. In fact, the U.S.
Department of Justice reports that the median jury award in “tort” cases is
only $24,000. Moreover, taking a look at the 75 most populous counties, jury
verdicts in these cases are in steep decline: from $71,000 in 1992 to $33,000
in 2005.
Learn more here
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.
Learn more here
WHO PAYS?
Where do jury awards come from – out of my pocket?
No. Jury awards are
generally paid for by an insurance policy that a company or professional
carries. That is why the insurance industry is so anxious to pass “tort reform”
– so it can reduce the money it pays injured victims. It is also why, since the
1950s, insurance companies have tried to convince Americans that jury verdicts
affect jurors’ pocketbooks through higher insurance premiums. They have also
tried to argue that establishing 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 most of their profit, or return on net
worth, 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.
(For more information about
“who pays”, see http://www.epi.org/publications/entry/bp157/)
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.
Won’t doctors leave my state unless we stop lawsuits
with “tort reform” laws?
No. There is no correlation
between the state a doctor chooses to practice in (or not), and whether that
state's laws strip injured patients of their legal rights. When the General
Accountability Office looked into this issue, it found that to the extent there
are a few “access to care” problems in the country, there are other
explanations “unrelated to malpractice,” that problems “did not widely affect
access to health care,” and/or “involved relatively few physicians.”
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 to keep corporations from running completely amuck; and
they providing a forum where evidence of misconduct can be forced out into the
open.
Why does the civil court
system need “protecting”?
Without 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.
The Economic Policy Institute found that “virtually every study conducted,
covering a variety of consumer products, shows that the quality, variety, and
safety of products made in the United States has improved dramatically in
recent decades, in large measure as a result of the tort system.”
http://www.epi.org/publications/entry/bp157/
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,
several years ago 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.
In 2005, the Economic
Policy Institute (“EPI”) released a study debunking common myths about the
costs of the legal system and its burden on consumers. According to EPI, “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.”
http://www.epi.org/publications/entry/bp157/
Doesn’t the US Chamber Commerce only focus on making
sure businesses can thrive?
No. Over the last few
years, the national U.S. Chamber of Commerce (as opposed to local Chambers of
Commerce) has changed. A huge budget of special interest money is now pouring
into the U.S. Chamber, which it spends on protecting and defending some of
America’s most harmful industries, with a far-reaching partisan political
agenda.
Learn more about the U.S.
Chamber and other groups here
WHAT DO CIVIL JUSTICE AND “TORT REFORM” HAVE TO DO
WITH THE ISSUE I’M PASSIONATE ABOUT?
Civil rights:
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 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.
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 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.
Learn more here
The Environment:
Lawsuits by those who are
sick and injured by pollution play a critical role in enforcing environmental
laws and regulations. Today's underfunded environmental agencies 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. Contrast this with “tort reforms” which
limit the liability of polluters and other reckless corporations, making it
difficult or impossible to hold them accountable for harm to individuals,
workers and the environment.
Corporate Crime:
Failure to criminally
prosecute corporations with records of 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, 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 knowingly cause
massive harm. In addition to compensating victims, personal injury suits, such
as wrongful death, products liability and toxic tort actions, can police the
dangerous practices of individual companies or entire industries. “Tort reform”
laws make it more difficult to hold corporate violators accountable.
Learn more here
Violent Crime:
Compensating victims 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 compensation 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.
Learn more here
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 monetary compensation and to hold abusers financially
accountable in court. And these laws are available through our civil courts.
U.S. laws and U.S. courts 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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