What is Tort Reform???

For 23 years I was a "tort lawyer". When I started law school, I honestly did not know what a "tort" was. I thought it was a French pastry; rather than what I immediately learned was "a civil wrong." But what really is a "tort lawyer" and what really is "tort reform"???

The non-judgmental definition of a "tort lawyer" is: a trial attorney who practices in the civil court system and specializes in civil cases where one party seeks compensation for an injury suffered as a result of an act. Therefore, any lawyer who works within that framework is a tort lawyer. What is more clear to me today than ever before is that the tort law system is nothing but politics in a courtroom with the pretext of impartiality, reasoned judgment and fair results.

I was truly a trial lawyer first: for me which side I was on did not matter. Give me a side and let me go. I defended doctors -- good ones and bad ones-; I represented plaintiffs -- all kinds and colors. I sued doctors; I defended Wal-Mart and Sears. I understood my job to be advocacy and confrontation: cross-examination is the greatest engine ever invented for the discovery of truth and, no argument, I could and still can cross-examine.

What I learned as time passed was: it really didn't matter. At the beginning of my career everyone was in the the "compensate" frame of mind. It was described as the "litigation explosion" or the "tort revolution." We had the California courts giving us the concept of "strict liability" ...(for another day). What I understand now is that it really was something completely different: it was wealth re-distribution sanctioned by a liberal judiciary, underwritten by the insurers and promulgated by the jurors themselves: what was then the voice of the people.

I could go on ad nauseum about the various examples of juries running wild on damages in the name of compensation (although none of you may cite the infamous MacDonald's case as that is NOT an example of a bad jury -- another story for another day). I could also cite the scores of cases where jaded juries scoffed at legitimately injured fellow citizens (a defense verdict in a rear-end collision??) and turned them away from the system designed to compensate them ... with nothing. What we had and now have is a completely unpredictable, unwieldy and ridiculously expensive system that does not work as intended.

In this first essay I will leave the details to further elaboration. My earlier question was: "What is tort reform"? I will tell you first what it is absolutely not. It is not a "medical court". It is not a preliminary screening process for malpractice cases. It is not any tinkering with the existing methods of resolution within the context of the existing rules and procedures.

Do you know that there has been "tort reform" for medical malpractice cases in Massachusetts since the early 1980's. Did you know there has been a preliminary screening "tribunal" system in place since that time? Did you know there have been damages caps in place for verdicts in Massachusetts since that time? Do you know where the loudest screams about the cost of insurance come from..of course: Massachusetts.

So, what is tort reform? Here is an idea that will work: If you use the system, you pay if you lose. It has worked in England and Canada for decades if not centuries; but here is my wrinkle. To answer all those who say, if you impose costs, you shut the doors of the courthouse to those who are less fortunate. No you don't. You allow the lawyer to co-sign on the obligation to pay costs.

What would happen at the outset of a case is the court will convene a costs hearing. It is in essence a "put up or shut up" proceeding. The defendant would have the same obligation: post a bond for costs or pledge assets. If the defendant is insured then this is not an issue. In the case of the plaintiff, the issue is more problematic. Now it is very safe to say that if, for example, the case involves a situation where the plaintiff in a medical malpractice case had the wrong kidney removed..any attorney would be happy to "post bond" for that case. On the other hand, a more tenuous case, involving a plastic surgery gone wrong...well maybe that would be a different issue; but if the lawyer, who stands to make anywhere from 25% to 45% of a verdict, is not willing to stand up and "post bond" then maybe that case really isn't that good a case.

What better way to filter out "frivolous" lawsuits than make the lawyer stand behind the filed claim??? Then what you really do is create a "risk-driven" market for litigation bonds. The lawyers will pool their assets and be required to stand behind what they do. This is true reform; not cosmetics. It would make the users of the system shoulder the cost of using the system as well as the risk. It would immediately relieve the state of a substantial amount of the cost and clogging associated with the personal injury system. If it is personal injury, then the cost of use should also be "personal".

Additionally, if the lawyer's bond is at risk then the negotiations at the "nut-cutting" point of litigation would be far more realistic and also control compensation --and thereby insured-- costs. When a case is in doubt, the value of "pain and suffering" --an intangible damage-- is far less rhetorical and far more practical if the lawyer, betting on an unseen, unselected jury, is also at risk.

I think I have something here. Maybe not.

I have been wrong before; I will be again.

Please tell me what you think...I welcome ideas.