EDITORIAL: ATLA ON TORT REFORM, Vol. 13 No. 2 (1995)

ATLA ON TORT REFORM

1. The Purpose of Tort Law: The Elimination of Preventable Injury

It was not that long ago that tort law stood as a shield for vested interests and privilege. Preventable injury was a fact of life. Victims of major preventable disasters went uncompensated, or received very little compensation. There was a cap on wrongful death damages here in Connecticut, and the defenses of charitable immunity, governmental immunity, parental immunity, spousal immunity, assumption of risk, and the existence of an automobile guest statute all had their hand in shielding vested interests from liability or their duty to pay for their wrongdoing.

Our predecessors recognized that this was fundamentally wrong. They knew that every person should be equal in a court of law, regardless of wealth or privilege, or the lack of them. The purpose was not just to compensate the wronged individual, but to improve society for the betterment of all. These ideas fueled the jurists and academics who took up the cause, and major changes came about during the last 50 years, most in the last 30 years.

It is clear that the job is far from over. In 1992 (the most recent year for which data are available) the National Safety Council reported that accidents caused 83,000 deaths and 17.1 million disabling injuries. The economic costs, consisting of medical care, lost wages and productivity, employer costs, insurance administration, and other expenses, amounted to more than $399 billion. This is as much as the federal government spent in 1993 on medicare and defense combined, and these numbers do not tell the whole story, as they do not take into account the devastating suffering and anguish that is the companion of the victims and their families.

Yet in 1995 we find that conservative activists seek nothing less than to reorder the allocation of justice in America, ignoring the devastating statistics of the accident toll on Americans. A decade of propaganda fed by the organized tortfeasors of America promotes a theory of law and economics which advocates that all laws are measured according to their economic benefit to society. Under this theory, laws that can be economically justified are good for society, and laws that cannot be economically justified should be changed or abandoned. What nonsense!

Stripped of its essentials, law and economics is contrary to the foundation of this country: equality, liberty and the pursuit of happiness for all citizens.

Every citizen, every potential juror, must understand that the fundamental purpose of tort law is injury prevention. Preventable injuries are not accidents. No injury is acceptable if reasonable prevention measures could have avoided it. Safety from preventable injury should be a fundamental right of every American, and the civil justice system is the means to accomplish this goal. Understaffed and underfunded governmental agencies have a spotty record of achieving safety. The marketplace, with its bottom-line mentality is no factor whatsoever. Only when tortfeasors have been forced to face the consequences before a jury has society been made safer.

A few examples illustrate how far we have to go. In 1991 the Harvard Medical Practice Study reported the results of a population based study of iatrogenic injury on patients hospitalized in New York state in 1984. Nearly 4% of these patients suffered an injury that prolonged their hospital stay or resulted in measurable disability. For New York state this equaled 98,609 patients in 1984. 14% of these injuries were fatal. If these rates are typical of the United States, then 180,000 people die each year partly as a result of iatrogenic injury. Think about it: this is the equivalent of three jumbo jet crashes every two days.

There are areas of our society where a great deal of improvement can be made. Some medical studies, for example, show that hospital personnel function at a 99% level of proficiency. However, a 1% failure rate is unacceptable. It is substantially higher than we would tolerate in the airline industry: If we had to live with 99% safety in the airline industry, this would mean two plane crashes per day at O'Hare. If our postal service were allowed this margin of error, 16,000 pieces of mail would be lost every hour. If bankers were allowed this margin of error, 32,000 bank checks would be deducted from the wrong account every hour.

There is enormous lack of awareness of the severity of the problem, especially in medicine.

To counteract the conservative ideology of law and economics as a justification for the reallocation of justice in America, we must teach every American that exposing dangerous practices and challenging the attitudes and interests that support them will build a safer, healthier society and drastically reduce the $399 billion injury tax that our society now pays.

More justice, not less, will make the country safer and economically stronger for all its citizens.

2. Poll Finds Little Support for Proposed Tort Reform Changes

A new poll commissioned by ATLA and several consumer groups shows that while voters put Republicans in control of Congress at the November 1994 elections, the electorate does not favor the sweeping tort reform as proposed in the Republican "Contract with America."

A poll of 1,001 voters was conducted January 4 to 11, 1995 by Yankelovich Partners and Talmey-Drake Research & Strategy. It was commissioned by ATLA, Citizen Action, the National Organization for Women Legal Defense Fund, the National Women's Health Coalition, the National Breast Implant Coalition, and DES Action. The margin of error for the poll is plus or minus 3.1%.

According to the poll:

· 77% said reform would be moving in the wrong direction if

manufacturers were held "less accountable for placing

dangerous products on the market."

· 73% said reform also would be moving in the wrong direction

if "ordinary Americans" were restricted in their ability to

sue large companies.

· A 2-1 majority said it believed changes in the civil justice

system should be left to the states, not Congress.

· A 5-1 majority stated that it believes leaving to Congress

the task of regulating the system sounds like more of the

same old big government solutions.

· 39% said the system should be tilted "a little more in favor"

of accident victims, while 9% want the reform to favor

insurers. 39% said the balance should remain as it is.

3. Latest NCSC Data Show Stable Civil Caseloads, "No Tort

Litigation Explosion"

A recently released annual report of the National Center for State Courts reveals that the trend toward stable court caseloads is continuing. The report, State Court Statistics: Annual Report 1992 (National Center for the State Courts, Court Statistics Project, 1994), estimates that more than 93 million cases were filed in state court in 1992. State Court Statistics at 5. Of these:

· 19.7 million were civil cases

· 13.2 million were criminal cases

· 1.7 million were juvenile justice cases; and

· 59.1 million were traffic and other ordinance violation

cases.

These cases are handled by about 28,000 judges in about 16,500 state trial courts (2,500 general jurisdiction courts and 13,900 limited jurisdiction courts).

Civil Filings in 1992 and Trends

Compared with 1985 data, these figures represent 5 percent decrease in traffic case filings, a 35 percent increase in juvenile case filings, a 25 percent increase in criminal filings, and a 30 percent increase in civil filings State Court Statistics, Fig. 1.2. at 5.

Total civil case filings in 1992 increased about 3 percent from the previous year. They increased in 32 states, declined in 18 states, and remained the same in one state. The researchers noted that there is a "strong, direct correspondence" between population levels and total civil filing rates. For instance, seven of the nine states with the largest caseloads are among the state with the largest populations. State Court Statistics at 10-11.

Controlling for population is the key to understanding variation among the states. For example, California has 62 times as many filings as Wyoming. However, California has 6,212 filings for every 100,000 persons, while Wyoming has 6,648 filings per 100,000. The median rate of filing is 6,610 civil filings per 100,000 population, and most states record a civil filing for every 10 to 20 residents. State Court Statistics, Figs 1.12-1.13 and pp. 11-12.

Composition and "Clearance Rates"

In 1992, the composition of civil caseloads in 27 general jurisdiction courts studied by the researchers included 35 percent domestic relations cases (the largest category) and 29 percent general civil cases (9 percent tort, 11 percent contract, 9 percent real property rights). Of these categories, only domestic relations cases have shown a continuous increase during the past three years. Tort, contract, real property rights and small claims filing in 1992 were all down from their 1991 levels. Most states ended 1992 with increased caseloads. State Court Statistics. Figs 1.15-1.18, pp. 13-15.

"No Tort Litigation Explosion"

The NCSC researchers estimated that just over 1 million tort cases were filed in state courts in 1992. Using data from Florida, Connecticut, Nevada and Wisconsin, the researchers determined the composition of tort filings as follows:

· 57 percent are automobile cases;

· 7 percent are professional negligence cases;

· 4 percent are product liability cases; and

· 32 percent are other torts.

Earlier research indicated that, of tort cases filed, 76 percent were settled and 5 percent went to trial (60 percent of them to jury trials and 40 percent to bench trials). State Court Statistics. Fig. 1.20 at 16, based on David Rottman, "Tort Litigation in the State Courts: Evidence from the Trial Court Information Network," 14 State Court Journal. No. 4 (Fall 1990).

Tort filings nationally have remained essentially constant over the past eight years and have actually declined by 2 percent since 1990, leading the report's authors to declare that "there is no evidence of a tort litigation `explosion' in the state courts." Where tort cases are growing, they are growing more slowly than civil cases generally: the total number of civil cases in general jurisdiction courts grew by 4 percent between 1990 and 1992. State Court Statistics. Fig. 1.21 and pp. 16-17.

The report is available from NCSC for $6.95 plus $3.50 for shipping and handling. Orders may be faxed to the NCSC at (804) 220-0449.

4. Los Angeles Trial Lawyers Association Changes Name to

Consumer Attorneys Association of Los Angeles

In a move that may have national repercussions, the Los Angeles Trial Lawyers Association has changed its name to Consumer Attorneys Association of Los Angeles.

Bruce Broillet, president of the Association, stated:

One of the major promises in the Republican "Contract with

America" would result in significant losses of consumer rights

and protections by limiting the ability of Consumer Attorneys

to seek compensation on behalf of injured consumers.

He stated that consumer attorneys stand up for consumers by suing corporations and fighting insurance companies to hold them accountable for making unsafe products and engaging in other acts of corporate wrongdoing.

Los Angeles is the first to make the change, although we are told that many trial lawyer associations across the country have debated a name change for years. The Los Angeles Trial Lawyers Association found in a recently conducted survey that the public overwhelmingly views a "trial lawyer" as a criminal defense lawyer. The survey, conducted by JMM Research of Sacramento, California showed that more than three times as many people thought trial lawyers represented criminals rather than consumers, and when asked to name a trial lawyer, 70% answered with the name of Robert Shapiro, O.J. Simpson's criminal defense lawyer, 79% had the wrong impression of the type of legal work trial lawyers do, and only 13% felt the name "trial lawyers" accurately described the type of law they practice and the people they represent.

5. Illinois Caps Appellate Opinions

In the face of strong opposition, the Illinois Supreme Court issued an order limiting the number and length of appellate opinions. In September, the Supreme Court denied a petition by a coalition of reform-minded and minority bar associations to reconsider its controversial June 27, 1994 order.

That order, the first of its kind in the nation, places a cap on the number of opinions that the state's five appellate courts can issue each year. These caps, which took effect July 1, 1994, ranged from 750 for the district that includes Chicago, to 150 for the rural downstate districts.

It also imposes a page limit on the length of judicial opinions. Majority opinions cannot exceed 20 pages; concurring and dissenting opinions cannot be longer than 5 pages. At the same time, the court narrowed the criteria under which court opinions can be issued, and it gave the appellate courts the authority for the first time to dispose of routine cases by summary order.

Interestingly, the Illinois Supreme Court did not place any limits on the number or length of its own opinions.

The majority of Supreme Court members responsible for the order, all former appellate court judges, said that the appellate courts are turning out so many opinions it has become impossible to keep up with the volume, and wading through them not only wastes time, but drives up the cost of legal research. Chief Justice Michael Bilandic is reported to have stated that there was an "avalanche of opinions" coming out of the appellate courts. Nearly 2,200 appellate opinions disposing of cases statewide in 1993 were issued, and many were too long, and criticized as redundant and lacking precedential value.

The order was not without its dissenters. Justice Benjamin Miller, joined by Justice Mary Ann McMorrow, acknowledged the existence of the problem, but characterized the majority solution as a "mechanical, arbitrary exercise, demeaning to the appellate court and to the public it serves."