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Monday, February 17, 2014


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.

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?
The Center for Justice & Democracy was founded by consumer advocates in March 1998. Originally known as Citizens for Corporate Accountability and Individual Rights (CCAIR), the organization was formed with seed money from filmmaker Michael Moore and received a significant grant from the Stern Family Fund as a recipient of the Public Interest Pioneer award. An independent office for CJ&D was established in New York in 1999.

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.

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

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

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 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.”

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.”

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

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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