Judicial Reform

Court reform is as important as tort reform in returning justice to America’s civil justice system.  Judges must remember that courts are places were injured people can be compensated for wrongs done to them— not where opportunists can strike it rich! Unless judges get back in the business of judging the merit of cases instead of merely assigning blame, little change in America’s lawsuit mentality can be expected. First and foremost judges should reinstate the “reasonable man” and “assumption of risk” standards in determining fault.

If a person knows or should know that something is obviously dangerous or problematic, it stands to reason that no one else should be held responsible if that inherent danger or problem results in injury to the complaining person.  Why for instance, should a woman who spills hot coffee on herself while in the car be entitled to $600,000 from the retailer who sold the container of coffee? The legal logic behind that judgment and a myriad of others like it boggles the mind.

Another wacky feature that should be discarded by the courts where it still exists is the concept of “joint and several liability,” which makes no sense at all.  Why should trial attorneys be able to cause someone with no more than, say, a 5% liability, to pay as much as 50% or more of a judgment simply because that defendant has pockets deep enough to do so? Where is the justice in that? Fortunately efforts are underway to rollback this decidedly unjust plaintiff-favoring tactic. Thankfully many states have already either eliminated or significantly limited the circumstances in which the doctrine of “joint and several liability” can be employed.

Judges must once again exert their authority to decide which cases get their day in court. The objective here is to eliminate frivolous lawsuit that bog down the system and drive up its cost. Judges must begin identifying frivolous lawsuits early on, disposing of them quickly with summary judgments. Where the nature of the disputes warrant and where the law permits, judges also should be willing to order independently administered mediation and / or arbitration to help settle disagreements fairly and expeditiously without tying up the courts with costly and protracted litigation.

Other dubious cases also would soon disappear if the courts opted to enforce the existing rule requiring plaintiffs to pay miscellaneous expenses advanced by their attorneys. There was a case in England, for example, where a patient sued a doctor for $350 claiming that the physician gave the patient a cold during a physical examination. The presiding judge dismissed the complaint and ordered the patient to pay $1500 in costs. It wouldn’t take too many of those cases to whittle down the overwhelming number of frivolous lawsuits clogging the courts today.

Unfortunately, lawyers in this country prefer to absorb such miscellaneous expenses, not out of kindness, but out of fear that to do otherwise might drive away other contingent fee based clients.  Civil court judges also should strive to bring back civility to every courtroom in America. They can help to do this by sanctioning attorneys for any perceived abuses such as unethical practices, bullying tactics and other rambunctious behavior. The American Bar Association and state bar association should do the same by upgrading the rules making them as tough as they used to be—and enforcing them vigorously.  There is also an important role in the tort reform process to be played by the nations law schools.  Greater law school emphasis on ethics in the practice of law is needed, not just concern about keeping client accounts straight and making certain client money is never co-mingled with the lawyer’s. One semester of class work on a topic as important as ethics just won’t cut it.