Tort Reform Debate

In the United States justice system, a tort is best defined as an injury or loss that was committed deliberately or negligently by a single person or an entity (Crane). The history of tort law can be traced back to the initial trespass of property or person, but it was not until the 18th century that the distinction between intentional and unintentional acts was made (Columbia Electronic Encyclopedia). In recent years, tort law has become the center of scrutiny through the increase in tort costs, insurance liability costs, and the number of frivolous lawsuits made. This scrutiny has lead to the creation of tort reform. Tort reform is a movement to reshape the way consumers can access the courts by restricting their right to sue and limiting the award that could be received (Crane). The upbringing of this reform has also brought to the table two clear and divided groups and their opinions of tort reform; the advocates of tort reform and the opposition.

Though many tort reform advocate groups exist, the most prevalent and well publicized advocate group that has arisen is the American Tort Reform Association (ATRA). These advocates have presented numerous reasons and facts as to why tort reform needs to take place in our legal system. Their first argument stems from the costs of tort law. They explain that the legal system has been burdened with too many frivolous law suits and that the system has therefore become expensive. They presented that the U.S. tort system in 2003 incurred $246 billion dollars in costs, which results to $3,380 per a family of four. They take this argument one step further by stating that the growth in these tort costs has consistently exceeded the gross domestic product in the last 50 years by 2-3 percent (ATRA).

Another key argument presented by the advocates is the increase in the number of lawyers and the corruption of the tort system. They support this argument by presenting the fact that the number of lawyers has increased at a rate that exceeds the rate of population growth. This increase has led to a system of cyclical abuse where the litigators are now recruiting clients in mass tort cases (through television and radio advertisement) rather than exemplifying the passiveness that the legal system has been known for (Wikipedia). This aggressiveness had lead to the targeting of particular industries, such as the medical industry.

The advocates of tort reform support many of their arguments with the changes that have been witnessed in the medical and healthcare arena. The advocates have linked the change in health care costs and the decrease in the number of available physicians to the recent "explosion" in medical malpractice lawsuits. The ATRA back this particular argument with the results that were found from the tort reform that occurred in the State of Texas within the last 5 years. Since the instatement of tort reform in Texas, there has been a sharp decline in the number of medical malpractice (tort) cases that have been filed (ATRA). Health care and legal liability costs have also declined significantly after the reformation and Texas has also seen an influx of new medical practitioners (ATRA).

One final key argument that is prevalent in the voice of the advocates is the concept of "suing out of existence." As seen with the medical industry, certain targets have been created through the recruiting of clients for mass tort cases (Wikipedia). Certain industries are consistently targeted in tort cases and are forced to pay high legal fees and out of court compensations to even stay afloat. One clear example that was made by the advocates is the gun manufacturers. These manufacturers have been forced to incur over $250 million dollars in legal defense expenses. Though this example clearly supports the advocates for tort reform, another side of this same argument can be seen thorough the opposition of the reformation. The opposition of tort reform explains that by protecting certain industries from tort cases, the laws are restricting "the rights of victims to be able to have their day in court" (Wikipedia). They also claim that tort reform bills are giving unprecedented immunity to certain industries and that this type of bill in unconstitutional.

Another key counter-argument made by the opposition is the denial of the existence of "litigation explosion" that the advocates have presented. They show that from 1993, instead of seeing the increase claimed by the advocates, there has actually been a decrease of tort filings by 5%. They also further there counter argument by showing that the numbers of civil trials have dropped by 47% during the same time frame (ATLA). Though these arguments are mainly presented to counter and invalidate the advocates of tort reformation, the opponents have also presented other unique arguments in opposition of tort reform.

One strong argument that the opponents have put forth to the public is the argument that corporations and insurance companies are the worst abusers of the litigations system and setting forth new regulations that would protect them from "excessive litigation" would just be another benefit. These corporations are using their vast resources to unfairly delay trials, pursue frivolous appeals, and contest claims in which liability is clear. This reasoning supports the opposition as there have been suggestions of tort reform where the "loser pays" (Wikipedia).