Cooper & Elliott Blog

20+20: Tort Reform and the Decline of the Jury System

Posted on Tue, Jun 30, 2015 @ 3:15 PM

We’ve been reflecting on our firm’s twenty years in the legal profession and anticipating the next twenty. This article looks at changes to the jury system, and how a process supposedly meant to protect litigants could actually be creating an unsafe society.

The jury system under attack

The idea that an injured person should receive fair compensation goes back to the Latin phrase “restitutio in integrum,” which means restoration to the original condition. In civil litigation, the goal is to restore an injured party to his or her original state, to compensate for what was lost.

For hundreds of years, our society has resolved legal disputes in a unique way: We use juries of regular citizens. In the hundreds of cases Cooper & Elliott has handled, we’ve found that juries are an effective means to a fair and impartial verdict.

In the past two decades, however, we’ve seen our jury system come under attack. Media reports, big business lobbying, insurance industry propaganda—all have painted a picture that today’s juries simply do not have the wherewithal to get it right.

“Tort reform” is one branch of this attack, and it’s become a big problem.

Tort reform and its impact

A tort is a wrongful act (aside from a breach of contract or trust) that harms a person, her property, or her reputation, and entitles the injured person to compensation. A car crash caused by negligence, a wrongful death, medical malpractice, and fraud are all examples of torts.

The ability to sue a person or business for injuries they’ve caused is a hallmark of our justice system. But holding insurance companies and corporations accountable costs them money, so they have sought to limit two things: the ability of plaintiffs to file civil cases, and the amount of compensation juries can determine when rendering a verdict in a civil case.

Insurance and corporate interests have labeled this process “tort reform,” and it has become a hot-button political issue in this country.

Big businesses are fed up with having to compensate the victims of their negligence. Insurance companies are also losing court cases, sometimes for tens or hundreds of millions of dollars. They paint a picture with broad strokes to give the false impression that juries are handing out huge paydays to plaintiffs for frivolous lawsuits.

Our decades of litigation experience tells us that nothing could be farther from the truth. And this type of thinking is causing a greater problem, inflicting major damage on our jury system.

Creating a cycle

One benefit of tort litigation is to ensure that companies put the safety of individuals above all else. By limiting the ability to bring litigation or by capping damages, legislators effectively tell big businesses that safety does not have to be a primary concern, because they either won’t have to worry about a trial, or they’ll only ever have to pay up a ceiling of damages—just another cost of doing business.

With businesses insulated from judgment and jurors handcuffed from rendering a fair verdict, the injured parties suffer even more. It’s become increasingly difficult for victims of wrongful injury or the families in a wrongful death case to get back to the life they knew.

The end result of all of this? A society of businesses that are less concerned about safety. Less concern about safety leads then to more accidents and injuries. More injuries lead to more court cases. More court cases lead to a greater perception of frivolous lawsuits and the demand for increased tort reform. It’s a vicious legal cycle, but it’s one we hope will be broken in the future.

Our role in the future of litigation

Informing the public, educating individuals, and empowering potential jurors is part of our mission as we move into the next 20 years. Our hope is that once people realize that the steady decline we’re seeing in the jury system can be stemmed through knowledge of the facts, we’ll see a return of the ideals and principles upon which the jury system is based. Principles that encourage safety and help injured parties return to their lives.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

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