Attorney John Hawkins who was a former legislator in SC recently wrote an editorial explaining how "tort reform" creates injustices in our legal system. Below are excerpts but see the full editorial at Spartanburg Herald.
"The Cleveland Park train wreck case is a painful reminder of why so-called “tort reform” doesn’t work. Under current law, no matter how many people get killed or injured in a single catastrophic incident due to the government’s negligence, the total liability for all victims is $600,000.
This law is an example of tort reform. This newspaper, which has advocated tort reform before, is correct in arguing that the limit needs to be raised to help the victims of the train wreck.
But it cannot stop there. We cannot raise the limit for just one group of victims while ignoring other horrible cases that have not received the same degree of publicity.
As an attorney representing injured people in the Upstate for almost 20 years, I have seen too many cases where limits on liability have resulted in gross injustice. I represented a man who lost his beloved wife to a drunken driver, only to have his loss mocked by the state’s ridiculously low requirements for how much liability insurance people are required to carry. I could cite other cases involving catastrophic injuries where the insurance limits of the at-fault party were not anywhere near enough to pay for the medical bills.
Setting arbitrary limits on liability will always result in certain terrible injustices. The train wreck, horrific as it is, is just one of many situations where wrongdoers are allowed to escape responsibility for their actions due to the government granting them immunity of some kind.
At its essence, tort reform is merely the government picking winners and losers in the American justice system. The winners are those whose negligence kills, injures, maims and devastates. The losers are the many families who find themselves unlucky enough to have been injured by a specially protected class of wrongdoers."
Below is a reader’s response and Hawkin’s reply from his blog.
Here’s Mr. Morrow’s letter:
Sunday’s letters: Limits on liability
Apr 26, 2013
The recent letter by John Hawkins attacking tort reform contained some accurate statements about those suffering from the negligence of others.
Never should a law have been put in place that limits liability to a total of $600,000 for the victims of the Cleveland Park train accident. It is also true that the state-required minimum for liability auto insurance is ridiculous. In today’s world of high health care costs and expensive automobile repairs, $25,000 is a slap in the face to those not at fault.
Mr. Hawkins describes tort reform as the government picking winners and losers. A more accurate description may be that the government is trying to prevent trial lawyers from bringing governments and businesses to the brink of financial ruin.
Limits will not always be fair to all parties involved. Without controls, lawyers like Mr. Hawkins will declare open season on taxpayer-funded governments. Businesses already struggling in a litigious environment will pass along their increased legal expenses to consumers.
Of course, there are legitimate losses as the result of negligence, but frivolous lawsuits can’t be ignored. My wife and I were sued for a car accident where $600 of property damage turned into a $25,000 lawsuit for pain and suffering. Not surprisingly, the case was settled for $7,000. If there was so much loss, would the client’s attorney have settled for such an insignificant sum?
I’m sure Mr. Hawkins has never represented such a case. He is, however, handling a lawsuit against the state for the security breach of taxpayers’ records last year. It is not surprising that Mr. Hawkins is not in favor of limits.
The system that is allowing the victims of true negligence with real loss not to be properly compensated is broken. Attorneys are part of the cause.
Here’s my thoughts on this gentleman’s letter:
It’s easy to blame lawyers for society’s ills. The scapegoating of attorneys has been taking place for a long time. But the truth is, society would be a pretty bad place without lawyers. Criminal Defense attorneys make sure that law enforcement doesn’t get out of control by enforcing the Constitution. Workers’ Compensation attorneys make sure that the worker, injured on the job, gets a fair playing field when he goes against a rich and powerful insurance company with an army of lawyers. The Personal Injury attorney helps an innocent victim of a car wreck to recoup their damages, pay their medical bills, and get something (yes, something) for pain and suffering and the downright inconvenience of having to deal with a wreck that is not the person’s fault.
Mr. Morrow has perhaps forgotten that there is already a system in place to limit out of control damages against Defendants like businesses and governments. It’s called a JURY. The right to trial by jury is granted by the same Constitution that guarantees the right to bear arms, freedom of religion, and other freedoms I’m sure Mr. Morrow and the rest of us hold dear. Why then, has the right to trial by jury been eroded over the years by "tort reform"? The answer is easy, it’s been eroded by propaganda and lies. People who do bad things, people who are negligent, insurance companies that deny legitimate claims: All want to shift responsibility for their actions away from themselves and instead whine about lawyers.
These people ridicule "pain and suffering" as if it’s some kind of line from a fairy tale. But pain and suffering is a real thing. It’s a tangible, factual condition that is proven beyond any doubt to affect human beings, dogs, mice, and any other being with a central nervous system. If a driver isn’t paying attention and rams their car into another, and injures that person and causes them pain and suffering, why on earth shouldn’t the driver be responsible for that? And if the parties can’t resolve their case through settlement, the case will be heard by a Jury of twelve human beings, all with the capacity to feel pain and suffering and, using their intelligence, put a value on that.
I don’t know all the facts about Mr. Morrow’s car accident, but we can surmise that Mr. Morrow or his wife was at fault for the accident. $600.00 is not a huge amount of property damage to a car, but neither is it insignificant. Interestingly, nowhere in Mr. Morrow’s letter does he ever accept responsibility for causing the accident. Instead, he blames greedy trial lawyers for daring to seek compensation for something so fake and silly as "pain and suffering." In my experience, everybody I have ever had to sue on behalf of a client probably considered the lawsuit "frivolous". That’s just human nature.
I thank Mr. Morrow for his letter, and I appreciate the chance to engage in spirited debate on this issue. Lawyers, and indeed anyone who holds the Constitution near and dear, need to stand up against the assault on the American system of justice and the right to trial by jury. Nobody likes to get sued, but the slow abolishment of the jury system in America will surely lead to tyranny of the rich and powerful over the individual. And there’s nothing "frivolous" about that.