Editorial on Contract with America - Tort Reform Proposal

The Proposed Legislation

Proposed tort reform statutes are suspiciously alike: each would have the winner in a lawsuit paying the loser's legal fees and costs. The underlying assumptions are that a significant percentage of lawsuits brought by plaintiffs are frivolous; that the federal and state courts have been unable to deal with these alleged frivolous lawsuits by plaintiffs and their counsel; and that many plaintiffs will be discouraged from starting frivolous lawsuits if they as losers in the lawsuit are required to reimburse the defendant's legal fees and costs.

What's Wrong with the Tort Reform Proposal?

The tort reform proposal, if implemented, would take away the courts as a place for middle class persons and small business to try to obtain relief from actual and perceived abuses by government, business and others.

A Quick Test

How much does it cost to defend a lawsuit?

Answer: Obviously, it varies, but a typical alleged "frivolous" suit brought in the highest trial court or in federal court could easily run between $50,000 and $500,000 to defend.

How much would a major corporation be able to spend in defending a civil action charging the corporation with significant wrongdoing?

Answer: Whatever it takes, and often regardless of the amount for which the plaintiff is suing. Defendants will spend $500,000 in legal fees and costs to avoid paying $10,000. The theory is (which seems like a main selling point of expense defense counsel) that it is necessary to resist various types of suits at any cost to avoid additional lawsuits, and this is so it seems when the suits are most meritorious.

How much would you, the person taking this test, be able to spend in suing an insurance company (the "major corporation" above) which failed to pay your claim for medical expenses (claiming such expenses are not covered by your health insurance policy)?

What likelihood do you have, realistically, in winning your case against the major corporation insurance company, when realizing that the amount you can spend in prosecuting your case is less than 1% of the amount the major corporation is willing to spend in defeating your claim?

What would the typical family decide about bringing a lawsuit against a major corporation if it could spend only $10,000 in prosecuting its suit; it believed the major corporation would spend $1,000,000 in its defense; and that the family would lose all of its net worth if it lost the suit because it would be required to reimburse the major corporation for its $1,000,000 expense?

Litigation Costs - Middle-Class Plaintiff

Middle-class and poor plaintiffs generally do not have much money to pour into a lawsuit. The amount available to them ranges from zero (the amount which is most common) to perhaps $10,000 or $20,000. Few middle-class persons can afford to pay more than $20,000 for a lawsuit.

What middle-class person or poor person could afford to pay $20,000 in an effort to win, but if that was unsuccessful, be able to pay the defendant reimbursement of $50,000, $100,000 or $500,000 in the major corporation's legal fees and expenses? The answer - very few persons.

How do middle-class and poor persons run a lawsuit without any money? The answer - by putting in more time by the plaintiff and more time by a lawyer working on a contingent-fee basis. At the end of the lawsuit, how much in out-of-pocket expenses have been paid by the plaintiff? Very little in many cases. Many lawsuits are run on a contingent-fee basis with out-of-pocket expenses for xeroxing, taxis, depositions and filing fees amounting to less than $5,000 or $10,000. The labor of the parties and the contingent-fee lawyers has been used without payment of any legal fees.

Litigation Costs - Major Corporations

Major corporations, on the other hand, charge fees for everything which the middle-class plaintiff did without expectation of any fee reimbursement. The paralegals, librarians, file clerks, lawyers, partners, investigators, designers, artists, jury consultants, data processing consultants, and others all put in charges against the litigation which are added up at the end and charged to either the major corporation client, or the losing plaintiff under the tort reform proposal.

The unfairness of this is obvious for many good reasons: