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Employment and Civil Rights Attorney Talks About the Truth Behind Tort Reform

How about that title to get your attention, eh? From time to time as I do these blogs, I really check myself once or twice before I publish. I sometimes wonder if I'm being too strident and too anti-corporate, too suspicious and cynical, about the aims of the insurance industry, the banking industry, and large corporations generally, and about their "super conservative" and "neoconservative" apologists and allies.

I think about that because I'm not a reckless writer, but I am an aggressive one. I'm a man who deeply believes in what I write about. When I started doing this Blog, it was with the aim of making sure that my clients, and even my opponents, understood where I come from. I actually think that I come from a place where far more people come from than don't. I think even my corporate attorney opponents are far more human than many of the clients that they represent. I think that many of the conservative judges with whom I respectfully disagree, sitting at the State and Federal level, are more human than the corporations their decisions unfairly favor.

All that said, however, I will not stop saying what everyone knows to be true. Corporations are not people, the corporate shield is a load of crap, and Tort Reformers are liars.

The concept of "tort reform" is simply a catchall phrase for the attempts by super conservative and business interests to continue to affect your right to enter a Courtroom and challenge them at law.

Make no mistake: even if they manage to convince "everyday citizens" that they're trying to save those citizens money in product cost or in some other obscure way, they're not. They're are trying to save themselves from having to account for their actions in Courtrooms before a jury of your peers. That's what Tort Reform is all about, and that's why lawyers who represent individuals call Tort Reform Tort Deform.

One of the ways they lie is to simply make up statistics, or read statistics in a biased way, in order to lie their way into the hearts and minds of the people they attempt to influence. Here are some debunked myths that the Tort Deformers use in their campaign of lies.

LIE: Americans are suffering from a "litigation explosion" of frivolous and unnecessary lawsuits. TRUTH: Tort cases and generally claims for individuals have been on the decline for decades. According to the National Center for State Courts, a nonpartisan data collection agency, tort cases declined by 25% between 1999 and 2008.

LIE: Claims on behalf of individuals, such as those for personal injury or employment rights, "clog up" our Courtrooms.

TRUTH: According to the National Center for State Courts, tort cases and cases on behalf of individuals only make up about 5% or slightly more of the civil case load. In fact, contract cases, which are more likely to involve corporations suing one another, are 10 times more numerous, making up just over half of the Court's work. In fact, while claims on behalf of individuals are on the decline, the number of contract cases between businesses rose 63% between 1999 and 2008.

So who's clogging up the Courts now?

LIE: Lawsuits are "jackpot" justice. Winning a lawsuit is like winning the lottery.

TRUTH: Obviously, this is a load of crap, because it's attempting to do away with the jury system, something that hundreds of thousands of Americans have fought and died to protect. In addition to that, most lawsuits result in comparatively small verdicts. They just don't make the news. Accordingly to the Department of Justice's Bureau of Justice Statistics, the average Court award to individuals is only $31,000.00. Once more, award sizes have actually been declining over the years in gross dollars, even as the value of the dollar also declines.

LIE: Corporations get "hammered" in Court by outrageous punitive damages awards.

TRUTH: Punitive damages awards are not commonly sought or awarded, and when they are, they amount to less than twice compensatory damages. According to the Bureau of Justice Statistics, the median or average punitive damages award is $55,000.00. There were two few medical malpractice cases in which punitive damages were awarded to provide a statistically reliable estimate of the amount of punitive damages in that category. That tells you that they are exceedingly rare and that this is one of the biggest lies super conservatives and tort reformers spout.

LIE: Doctors are increasingly bombarded with medical malpractice lawsuits.

TRUTH: Both the National Center for State Courts and the National Practitioner Data Bank, a doctor group, to which medical malpractice payments must be reported, have found that the number of medical malpractice payments to have steadily dropped over the last ten years. The number of malpractice payments in 2010 was 13,277 nationwide, a 35% drop since 2001. According to the National Center for State Courts, medical malpractice cases represent well under 2% of all civil cases, and less than 8% of all tort cases. Remember from above that all tort cases represent a tiny fraction of all court cases.

As you can see, truth only sounds like truth sometimes. Usually, it's subjective, and sometimes, it's crap. Here, anytime someone seems to be repeating what Rush Limbaugh says or what Bill O'Reilly says or super conservative big mouth says, ask them for statistics, ask them for proof, from a neutral source, not Chambers of Commerce, Fox News, or Trade Groups. Then show them these, and see whether or not they're honest enough to change their view. If instead they simply cleave to the idea that "somehow," the super conservatives incorporate big mouths are right, then this person is a lost cause.

The Civil Justice System is the most precious safe guard of liberty, yet liberty is eroded in many ways, some of them subtle. Corporate power insidiously widens the gap between rich and poor even as the corporations put self-serving "We are awesome!" ads on TV and get smiling politicians to endorse their agendas in exchange for big checks.

Don't fall for the lies. Tort Reform is a lie and the Court system should be fully and unimpededly open to all working people and their families as well as the corporations that seem to have taken them over.

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