A few years ago, in the late 1990s, I overheard one
Anthony Tarricone, in a March 24, 2010, article entitled, “Do as I say, not as I sue!” in The Huffington Post, said, “it’s awfully hypocritical for lawmakers to curtail Americans’ access to the civil justice system, and at the same time, file lawsuits to push their own self-serving agenda. While today they brand the health care bill as a "Washington takeover of health care" and [say] that it violates states’ rights, just yesterday they wanted to enact sweeping federal tort reform and trump the wisdom of judges and juries in states or local communities. It is quite galling to hear certain politicians, with the encouragement of powerful, well-heeled corporations and their executives, talk about so-called frivolous lawsuits (which often translates into any lawsuit against it or its friends or interests), use the legal system to its own advantage when it so wants or needs.
Question: why is it that a jury is qualified in all states to sentence a person to either death or life in prison, but it is not qualified (many politicians argue) to determine the amount of damages for a person’s non-economic damages (like pain and suffering) in a tort case (e.g., medical malpractice)? How upside down is that thinking? The answer is, those politicians, and the rich folks that support them, don’t want to be held accountable and responsible for their wrongful acts. They want immunity, plain and simple.
No good lawyer or jurist I know likes a truly frivolous lawsuit—they take time away from difficult problems in the already over-burdened Justice system’s pipeline. [Furthermore, so-called "frivolous" suits 99.9% of the time are bounced out of court by a judge before a jury even gets to sniff the courthouse]. There are so many things we, in the legal community, can and should devote ourselves and our time to, to help protect people and businesses, consumers and clients, adults and children, from unsafe products, untoward circumstances and illegal activities.
Yet, if we as lawyers say we will only handle one kind of case and not another—or we will recommend, or acquiesce to, a cap on remedies for injury to a person or property, you can bet that the unscrupulous in society will find a way—wittingly or unwittingly–to take advantage of the little guy, the small business person, the elderly, the fragile patient, the unprotected widow, the single mom, children, or the accident victim. A cap on damages (e.g., pain and suffering, or “non-economic” damages) is a mere drop in the bucket (and cost of doing business) to a corporation, or an insurance company, and would result in a lack of protection to many consumers. Which is exactly why such “caps” are being pursued by those with power – it is a back-door way of achieving immunity, or a degree of immunity from the consequences of harming others. The tort system acts as a protection for our citizens, and it encourages people to act safely and in society’s best interests. The acceptance of a damages cap, or maximum penalty, eventually will casually erode the most basic of rights provided in The Constitution of The United States, such as the rights to speak freely, to gather in a public place, to pursue happiness, to seek redress for harms caused by another. These are the rights which hold our society together and provide a sense of order.
There are an array of injustices we lawyers devote our time to, especially when we believe we can change the outcome for the better of society and our clients. Yes, financial damages to victims of unsafe products or practices, beyond principle and a positive outcome, provide additional incentive to achieve success, but the basic desire to change things for the better is why relatively intelligent men and women committed to a more just and fair world for all, become lawyers… to help reduce the power of the unscrupulous, as well as the erring, to course correct the history of society for coming generations—to serve and encourage democracy in this country.
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