We Have Come a Long Way…

April 8, 2009

Tort Reform Sounds Good, Smells Bad

When I came to the bar in 1959, there were a whole series of immunities, bars, evidentiary rules and canons of ethics that prevented injured people from having their day in court. These roadblocks originated around 1840 with the rise of the Industrial Revolution. At that time, the courts recognized the natural tension between the litigious nature of Americans and our burgeoning system of free enterprise. So, they set out to help big business by preventing injured people from suing.

For instance, you couldn’t sue the government because of “sovereign immunity.” Certain charitable institutions were granted immunity from lawsuits.

The law of “privity,” which meant you had to have direct contact with the party you were suing, effectively granted immunity to manufacturers of defective products. If you bought a car, and it blew up and killed your family, you couldn’t sue anyone, unless you could prove it was the dealer’s fault.

Until the 1960s, there was no uninsured motorist coverage to protect you in case you were hit by someone with no auto insurance. Then, in the 1970s, we added underinsured motorist coverage in case someone with too little insurance hit and injured you. Even with all of that insurance, if you and your wife were in a car accident and you were at fault, she couldn’t recover any compensation from your insurance company because of “spousal immunity.” You would have to bear the financial burden of your wife’s recovery.

A lawsuit on behalf of an infant had to be brought within two years after birth, regardless of the circumstances; wrongful death suits had to be rifled within 12 months, before enough investigation could be done; and recoveries that included loss of future income had to be reduced to present worth. The deck was stacked against the average person.

But with the rise of the consumer movement in the 1960s, the courts recognized the injustice of making victims bear the cost of their injuries. The great changes in liability law that ensued came about because capable and dedicated trial lawyers recognized that the law is never settled until it is right and it is never right until it is just.

Today’s “tort reformers” want to return us to the late 19th and early 20th century.

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