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Honorable Republican Against Tort Reform

On Behalf of | Feb 4, 2011 | Blog, Uncategorized |

Some of you may know the name Fred Thompson, the actor turned Republican senator from the state of Tennessee.  I’ve never known too much about his personal politics, because I’ve never made it my business to know much about Tennessee and, admittedly, as a Progressive, I tend to make assumptions about Republicans which, I suppose (infrequently), I place upon them the burden to disprove.  Fred Thompson, at least in the area of ‘tort reform,’ which thinking lawyers call ‘tort de-form,’ seems to have said the right things and has actually taken what I consider to be a principled stance against the misinformation and scare tactics to which the right and its allies are so frequently prone to resort.

In the online periodical The Tennessean, which I admit I don’t know much about (so I don’t know whether or not it’s the online version of the print periodical or purely online), Senator Thompson said some interesting things about Tennessee’s civil jury system, which, like those of so many states, is under attack by right wing interests seeking to limit access to courts for people and to limit and ‘cap’ recoveries in an effort to protect the corporate and other wrong-doers of this nation.

I’ve often mentioned in my other blogs that I consider the corporate and right wing ‘conservative’ assault on civil justice – which, in truth, basically means an assault on the scale and nature of remedies that individuals can obtain against vested interests like corporations – to be nothing more than a cynical and dishonest attempt to brainwash the American people into gladly giving up their civil rights when corporations not only don’t give up rights, but also obtain more and more of them every day.

The concept of the jury is centuries older than America and is at the core of a functioning, capable democracy with a judiciary capable as standing independently as one of the three branches of government.  Only through the power of a jury of regular citizens can the vested interests of government, corporations, banks, insurance companies and powerful lobbies be kept somewhat in check.  Are juries tampered with?  Yes.  Are juries sometimes plain wrong one way or the other?  Absolutely, but juries mostly get things mostly right most of the time, and given that we’re not yet at a point where we can have computerized juries and we haven’t quite found the planet Vulcan, our fellow American citizens are all we have.

The fact that most juries get it right most of the time irks the right more than anything. Corporations don’t like having to surrender their power to juries.  That’s why arbitration, which is neither ‘fair’ nor ‘inexpensive,’ but which is billed to be both by the right wing, is so popular these days.  Unfortunately, most American citizens are so personally consumed with distractions, economic worry, war worries, health concerns and the like, and some of them are so philosophically and ideologically wed to the right wing and its pundits, that they simply can’t conceive that the right wing may not have their best interests at heart after all.

I have to admit that, even though I liked his performance in The Hunt for Red October and in a few other movies, I never assumed Fred Thompson was a principled man when it came to most issues that Progressives feel are important because he was a Republican.  I’m prepared to admit that I was wrong.  Fred Thompson did what appears to be an op-ed piece in The Tennessean and said some things about the jury system that, coming from a Republican, I think will even more sway, and ought to induce more thoughtful consideration in, everyone who reads this than would usually be the case.

I thought about putting only the ‘pertinent’ parts of his comments into this blog for length’s sake, but, honestly, I liked everything he had to say, so here it is in full:

I have been asked why I want to take part in the discussions when the state legislature considers changes to our civil justice system in Tennessee.  I am certainly aware of the ideological boxes that advocates like to put folks in when it comes to “tort reform.”

Republicans and conservatives are supposed to be for anything called tort reform. However, I’ve never subscribed to these boxes.  Not when I was in the U.S. Senate faced with these issues, and not now.

Some argue that the legislature should tell Tennessee juries that they can award only so much compensation in certain types of cases against certain types of defendants – regardless of the facts and circumstances of the case.  I don’t agree with this approach, and I don’t think it’s “conservative.”

To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society. Conservatism is individual responsibility and accountability for damages caused, even unintentionally.  It’s about government closest to the people and equal justice with no special rules for anybody.  It’s also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the Constitution.

As someone who practiced in the courts of Tennessee for almost 30 years, I believe that a Tennessee jury of average citizens, after hearing all the facts, under the guidance of an impartial judge and limited by the constraints of our appellate courts, is more likely to render justice in a particular case than would one-size-fits-all rules imposed by government, either state or federal.

Our system “ain’t broke.”  It is based upon tradition and common law and has provided justice to individuals and businesses alike.

The legislature has made adjustments to our tort law from time to time.  For example, in 2008 a law was passed requiring plaintiffs to get a written statement from a medical professional saying that the lawsuit had merit, thereby reducing medical-malpractice suits.  This was reasonable and appropriate.  However, never has the legislature imposed a dollar limit in cases where damages and negligence have already been proven.

I recognize that several other states have imposed such rules.  It’s understandable.  The pressure to do so is very strong.  That does not make it right or sound policy.  Tennessee does not make a habit of simply following a path that has been cut by others.  Forty-one states have a broad-based income tax, and I am proud to say that Tennessee does not, and I believe it is much the better for it.

No system ever devised by man is or can ever be perfect.  But our civil justice system has served us well, and any substantial changes to it should be made only if the change is needed, fair and beneficial to all Tennesseans.  I hope that I can be helpful in discussions that we will soon be having on these important issues.

Were Senator Thompson still in office, I doubt that he would have written this.  That having been said, he’s a considered ‘conservative’ in the true mold of that word.  It’s an interesting debate and one that I won’t strain the length of this blog to discuss, what it means to be ‘conservative.’  Mostly, the people that call themselves ‘conservatives’ are, in fact, the worst kind of anti-progressive reactionaries, willing to change anything if it means changing it for the benefit of the religious/banking/insurance/medical/corporate lobby.  They are simply foolish, misguided and ignorant people who have come to believe that anything that is said about law, society, culture or politics is not to be trusted unless it comes from Sarah Palin, Ann Coulter, Rush Limbaugh, Bill O’Reilly, Sean Hannity, etc. They don’t think for themselves anymore, because they’ve surrendered their judgment to those who think for them.  They are not conservatives any more than I’m a communist because I believe in socialized medicine.

Anything which takes away a trial by jury or limits the power of a jury is bad for society. I’m not saying this because I’m a lawyer and I practice in front of juries and depend upon them to make awards to my clients so that I may make a living.  Doctors ask for money before they heal, because they need to make a living, too.  So do nurses.  Even clergy need to make a living, so let’s stop suggesting that anyone who needs to make a living isn’t to be trusted when they have a valid opinion about the law or our society.

I believe in justice for all.  I believe in the American ideal.  I believe that average citizens, especially in a group, can do the right thing so often (though not all the time) that there’s no better option out there.  In fact, any other option is a step toward the sort of fascist state that we’ve gone to war against more than once and that we ought to strive never to become.

I am glad that there are principled Republicans who speak these words because I’m hoping that someone will listen to them.  I just hope that enough people, perhaps even enough conservatives, one day realize that they’re being led down the primrose path of war, corporate fascism and ‘anti-progressiveness.’ America works best when it’s an even playing field and when everyone has the same rights.

Thank you, Senator Thompson.  I was wrong about you, and I’m glad to admit it.