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January 1, 2005

Does the Tort System Need Reform?

How you feel about the various proposals generally identified as “tort reform” somewhat depends on how you react to one of the following statements about the equitable settlement of disputes:

“Without fairness … there will be trouble.”
—William Damon, director, the Center on Adolescence, Stanford University.

“This nation has a passion for fairness. That passion is evidenced in our Constitution, in the Bill of Rights, in executive orders, in court decisions. But most of all, it courses through the arteries of our culture …”
—Ward Connerly, “With Liberty and Justice for All,” the Heritage Lecture Series.

“I cannot rip out the hearts of those who hurt you. I cannot hand you their severed heads. But I can hunt them down and settle the score. I’m Jim ‘The Hammer’ Shapiro, and I’ll squeeze them for every dime I can. You call … I hammer!”
—Jim ‘The Hammer’ Shapiro, plaintiff’s attorney.

Representing this point of view, the Web site Overlawyered.com, puts it this way: “Overlawyered. com explores an American legal system that too often turns litigation into a weapon against guilty and innocent alike, erodes individual responsibility, rewards sharp practice, enriches its participants at the public’s expense, and resists even modest efforts at reform and accountability.”

However, in the rush to change the law to limit the financial damage done by lawsuits, it is worth remembering several things.

First, many, perhaps most, lawsuits are neither frivolous nor opportunistic. People and companies make mistakes, do wrong and sometimes harm others in so doing. One of the great glories of the U.S. legal system is that we are all equal before the law, and we can all seek redress of our grievances and appropriate compensation for loss. Let’s be certain that the drive for “tort reform” does nothing to limit our access to the courts or our ability to win just legal victories.

Second, not all “trial lawyers” are pirates. In fact, trial lawyers who tend to represent defendants resent the extreme and irresponsible lawsuits that some plaintiffs’ attorneys are willing to pursue. The problem, in terms of the public policy debate, is that responsible defense attorneys usually won’t criticize the plaintiffs’ bar. It’s considered a serious breach of etiquette, something that’s just not done. We applaud civility, but in this case, it comes across as a serious lack of backbone that abandons the field to the legal buccaneers.

In this debate, Forward subscribes to the views of Mr. Damon. Without fairness, there will always be trouble. Let’s make certain that in our zeal for reform, we don’t lose sight of what’s fair.