Tony Rubolotta

A Different View on Tort Reform
August 22, 2009

You may have heard this from a number of people, including staunch, self-professed conservatives that juries make stupid decisions because they are filled with stupid people who weren’t smart enough to get out of jury duty in the first place. When the conversation turns to tort reform, the same people will proffer any number of ideas on the problems and fixes, generally blaming lawyers and lawyer fees. When I suggest that "smart” people shirking their civic responsibility to serve on juries allow the "dumber bleeding hearts” to run amok, the conversation quickly changes to sports, the weather or anything but tort reform. I bring up tort reform because it seems to have taken a very distant back seat in the health care debate, though it is a very large component of health care cost.

I once related on this page my own experience serving on a jury in a civil suit. There was credible proof that the woman suing for damages was lying about her injuries and where they were sustained. Nonetheless, two jurors appeared intent on awarding this woman something, even if it were less than what she was asking. I felt sorry for the woman too, but was I going to condone and institute an injustice against the defendant in exchange for a good feeling? Whether the defendant had insurance or not was irrelevant to me. Justice was relevant and I made it equally clear that I didn’t think plaintiff deserved a dime, and if anything deserved a reprimand for lying and wasting our time. Another juror took the position I did and between the two of us convinced the others the defendant had no liability and there would be no award.

Civil juries, at least in Illinois, operate under different rules than criminal juries. First, it doesn’t take a unanimous decision and compromise is permitted. That jury I was on could have found for partial liability and awarded what it thought fair compensation. That was what the two bleeding hearts on the jury wanted, a compromise so we could all get out early and go home with a "good feeling” about ourselves. I don’t get a "good feeling” when I compromise with injustice, and I was prepared to stay there and fight it out to the bitter end. Of course, I could have done what the "smart” people do and probably evaded jury duty.

People like John Edwards made their fortune suing doctors because "smart” people left the decision to "dumb” people by shirking their civic responsibility. Edwards played on the emotions of the jury to ramp up damage awards and collect his share. Would he have been as successful had people with a strong sense of justice and sound reasoning abilities been on that jury to counter people who would trade justice for a good feeling?

I am against tampering with lawyers fees because I also believe in a free market. The agreement between the lawyer and his client concerning fees is none of my business. The only avenue I see worth exploring in the area of fees is collusion to fix prices. We have laws that cover price fixing, and if they need to be clarified and enforced when it comes to legal services, that is one part of tort reform I would support.

The only other area I see left to explore is the "frivolous lawsuit”. To a great extent, we rely on judges to make that decision and bar frivolous lawsuits, but apparently that doesn’t always work. I suppose with "empathetic” judges, no lawsuit that holds the promise of taking money from a "have” and giving it to a "have not” is frivolous. I don’t know the answer to this problem. I am not a lawyer and don’t know what power the jury may have toward solving this problem. Can the jury find the lawsuit frivolous and then punish both plaintiff and their attorney for the waste of time everyone suffers because of their greed? Can the jury award defendant and their attorney for their costs and inconvenience? "We, the jury award the plaintiff minus $500”. Can a jury put a minus sign in front of the award?

In conclusion, the best remedy for tort abuse is the citizen that exercises their "smarts” as a participant in the system rather than as an evader of the system. It means using every ounce of intellect and energy you have to combat the "dummies” you complain about making unfair and outlandish awards. It means taking a stand for what is just no matter how long that jury must stay in session. The next time you get a notice for jury duty, do something constructive with it, participate and make the difference that will be tort reform. Lawyers will not fix it, but you can.