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Occupy the Courts! The 1% Fund “Tort Reform” to Restrict the Rights of the 99%

“The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection.” Chief Justice John C. Marshall, Marbury v. Madison, (1803)

Today is the one-year anniversary of the Occupy Movement, wherein 99% of the American people have raised their voices against the 1% made up primarily of the corporations and the high-net-worth class. And as loud as the 99% have raised their voices, the 1% have simply put more money down on the premise that they, the 1%, have some ill-conceived “right” to rule and get what they want regardless of the harm it may cause to the rest of the Nation.

One of the key methods the 1% have used, especially over the past several decades, is to raise a clarion call against so-called “frivolous lawsuits” under the rubric of “tort reform.” The use of these two terms together makes it seem like a good idea – who isn’t for reform, and against something frivolous? But this is just another example of “the big lie,” wherein those who stand to gain the most from the outcome of an issue do everything they can to control the framework of the conversation. We are meant to think that most personal injury lawsuits are a burden on reasonable Americans, that they, and they alone, are responsible for the runaway costs of medical care, or the institution of “runaway” regulation that “stymie’s the growth of jobs,” as well as many other arguments designed to make us think this is the singular cause of all our woes.

Yet as in any argument, it pays to “follow the money,” and to also follow who is paying to make these arguments stick. Both of these terms – “frivolous lawsuits,” and “tort reform,” issue mostly from the mouths of politicians and their true supporters -major corporations, pharmaceutical companies, agribusiness, Wall Street fund managers, big accounting firms, private prison companies, insurance companies and Fortune 500 spokespeople. They have worked diligently to misinform the electorate that if they don’t “do something” to stem the flow of these “frivolous lawsuits” that plaintiff attorneys will bankrupt the nation. They throw about figures that apparently have no sources, as a means to scare everyone into believing the Republic will fall if we don’t “rein in these contingency-fee plaintiff sharks.”

But none of these fear mongers ever seems very interested in telling the whole story, nor to reveal exactly where it is they get their gigantic and frightening numbers to “prove” their assertions. So, let’s help them out, shall we? First, let’s clarify why they do this.

They do this because these corporate wrong-doers do not want to be held accountable when they cheat homeowners or their insured’s, out of money, or when their chemicals poison the environment or directly harm people, or when their products injure or kill people. Currently, the only way they can be held accountable is by individual citizens having access to contingency-fee attorneys who will pursue their claims through the judicial process, and through their unrestricted right to jury trial by one’s peers pursuant to the 6th and the 7th Amendments of the U.S. Constitution. The bottom line: any “tort reform” is an attempt by the 1% to limit the right to trial by jury for the 99%.

“Trial by jury in civil and criminal cases stand on the same footing. They are the common rights of Americans. It is essential in every free country, that common people should have a share of influence, in the judicial as well as the legislative department.” – Richard Henry Lee (1787) “Trial by jury in civil cases is as essential to secure the of liberty of the people as any one of the pre-existent rights of nature.” – James Madison (1789) “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” – Thomas Jefferson (1788)

Next, let’s clarify what a “contingency fee” is and why this manner of making the law available to common citizens is offered by plaintiff attorneys; let’s get very clear about the actual numbers, and provide the sources for these figures; and let’s ask why the right to “redress of grievances” is ensconced in our very Constitution. But, not necessarily in that order, OK?

The idea of a contingency fee as the means for common citizens to have access to the law for justifiable redress of grievances may seem as though it accrues great power and wealth to the plaintiff attorneys who utilize this well-worn tool. The common people, having lesser resources with which to duly exercise their rights as enumerated in the Constitution, would in fact have a right with no teeth otherwise. Harms suffered by no fault of one’s own, that results in physical or fiscal injury, would relieve common citizenship of any substantial rights, and make such the lot of such citizens the equivalent of medieval serfdom. Corporations could, and indeed many times have, run roughshod over the health and welfare of the people with near impunity. If only those with sufficient wealth have access to the courts, how then are all equal under the law?

A contingency fee is predicated on the concept that if the attorney is not successful in the case taken up on behalf of the citizen, there accrues no cost to that citizen. The attorney, therefor, stands to lose more than the case itself, but as well their own investment of time and money applied to the suit willingly engaged in. This holds regardless of the level of costs so incurred by the plaintiff attorney. In a case where there is significant up-front costs for the plaintiff attorney,, this can, in the event of a loss of the case, amount to truly significant sums. So to claim, as many who descry tort reform as the panacea to misperceived fiscal losses to businesses in particular do, with ever-increasing volume, that the right to sue is like a payday for attorneys who represent people on a contingency basis is just plain false.

In contrast, the defense must pay their lawyers as the process moves along. The defense bar, therefor, has significant reason to push a case as far as they can, regardless of the merits of the actual grievance, as they stand to pocket significant sums the longer the action is maintained. We should not be surprised there are no contingency defense firms. In instances where the nature of the suit is such that any lawyer of either camp would understand or believe the outcome is highly likely to go against the defendant, logic would argue for early settlements to be the rule. But this would deny the defense attorney access to the larger piece of the pie that goes toward their primary motivation. The argument will be made to the defendant that the matter at hand could go either way, that “we will wear them down,” that we can overwhelm the plaintiff with our greater force, etc. These can be persuasive arguments, but they can often be based on self-serving rationalization rather than any likely truth of the matter.

Understanding that the defense bar has a direct stake in the inflation of the cost of any given civil matter, by making it continue well past any reasonable point regardless of the most-likely outcome helps us better understand the true cost of civil torts in the U.S. Yet the figures tossed about by the people who employ the defense firms would have everyone believe that the cost is entirely the fault of you, the common citizen, being conned into suing for personal injuries by unscrupulous plaintiff attorneys. They would also have you believe that nearly every such suit is stealing millions of dollars for no good reason from well-meaning corporations who do their best every day to make a difference for our economy, etc.

Yet again, the truth is considerably different than the 1% would have you believe. The actual average settlement amount for civil lawsuits in the United States is quite moderate – about $40,000.00 per case. And then, there is all the noise made by these so-called “reformers” on the topic of punitive damage awards. But let’s permit a real authority on this topic to weigh in on this issue:

“Business groups often mention punitive damages as an area of concern (e.g., U.S. Chamber of Commerce 2008) and punitive damages have been perceived as so problematical as to lead the Supreme Court to impose constitutional limits, using controversial substantive due process principles, as well as federal statutory limits (BMW of North America, Inc. v. Gore2; State Farm Mut. Auto. Ins. Co. v. Campbell3; Exxon Shipping Co. v. Baker). Even liberal sources have believed punitive damages to be erratic, with juries simply plucking numbers out of the air (Washington Post 1996).

The attention punitive damages receives is disproportionate to their real world impact. Evidence from reliable data on trial outcomes indicates that punitive damages are not sought in most cases that reach trial (Eisenberg et al. 2011) ….

Nevertheless, statutory provisions have taken the form of caps on punitive damages, increased pleading requirements, heightened decision standards, and imposed requirements for judicial preclearance to seek punitive damages. Major issues about punitive damages include the circumstances under which they are awarded”

from: The empirical effects of tort reform, -Theodore Eisenberg, Cornell University – School of Law; Research Handbook on the Economics of Torts, April 1, 2012

Again, this is one of the actual results of such “tort reform” efforts. And when things like this slowly erode the foundations of the original intent of the Founders as to where the rights to redress was aimed, well, it’s hard to pay attention when the arguments are being paid for with so much money by such entrenched vested interests.

“It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable. They are cognate rights, and therefore are united in the first Article’s assurance.” Judge Wiley B. Rutledge, AJ- U.S. Supreme Court

So, if the figures shouted by the 1% aren’t very sound, and the fact that you, common citizen, taxpayer, and 99%-er, have a Constitutional right to seek redress of grievances as put forth in the original Constitutional framework, why all the effort to convince you that civil torts are such a pernicious evil? Why have they been willing to spend so many billions of dollars to con the entire Nation into giving up their Constitutional rights? Well, it turns out, it’s pretty simple. The 1% isn’t afraid to look way down the road to see ways to increase their wealth and power at the expense of the 99%. A few million spent here, goes the tortured logic, means many more millions down the line after they have been freed to make defective products without having to fear they may be sued for the damages they continue to cause. They spend nearly as much to defeat local, state, and Federal regulations that protect consumers against bad food, badly made products, dangerous roads and bridges, deadly pharmaceuticals, toxic pollutants, and more. They clearly feel that they have a “right” to do what they wish by virtue of the fact that they have great wealth, and therefore should be afforded great power.

And of course the rest of us, the 99% of us who are “common citizens”, should be happy to live off the table scraps, and keep our mouths shut. And isn’t it strange that the 1% spend so much time talking about the Founding Fathers, and “original intent.? Wasn’t Alexander Hamilton, the man responsible for the U.S. banking system itself, himself a Founding Father? And wasn’t the entire concept of “redress of grievances” at the very heart of their “original intent?” It should no longer surprise and shock any common citizen to find themselves constantly bombarded by this very high-cost con game at nearly every turn. But it will surprise, nay, dismay most of the 99% of this Nation when we wake one day to find some of our very basic, foundational civil rights, as promised by our own Constitution, have been bought from us for so little, and ended up costing us so very, very much.

“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” – Alexander Hamilton, On Redress of Grievances

The Cartwright Law Firm has been at the forefront of the battle against the lies of the so-called “tort reform” movement for decades, and will continue to stand up for the rights afforded all citizens by the U.S. Constitution.

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