When it comes to tort reform, most lawyers look first to legislatures to make a change.  It is judicial rulings, however, that develop more than 95% of America’s tort law.

 

As any torts casebook will show, the law usually develops in appellate judicial opinions.  Most of these opinions are attempts by plaintiffs’ or personal injury lawyers to extend tort law in a more favorable way to injured persons.  Personal injury lawyers have successfully argued for such changes in a number of states to abolish the contributory negligence defense, to abolish charitable and other immunities, and to create new ways to sue for claims such as medical monitoring.  If personal injury lawyers have a monopoly over fostering legal change, then the law will become more and more pro-plaintiff over time.

 

What is crucial to understand, however, is that the “creation” of new tort law does not have to be solely in the province of personal injury lawyers.  From time to time, defense counsel can do the same thing.  They can create new law in the courts, in effect, tort reform by judges.  Defense counsel can foster changes in tort law when reasons for the original rules fade.  The defense can use this principle to argue for legal change in the courts.  For example, the Supreme Court of Tennessee abolished joint and several liability when it adopted comparative negligence.  Once the Tennessee Court decided that jurors could apportion fault between plaintiffs and defendants, the Court decided that jurors could apportion fault among multiple defendants.  Defense lawyers in a number of states have persuaded courts to raise the burden of proof in punitive damages cases from a preponderance of evidence standard to a clear and convincing standard.

 

The attached article, “Moving Toward The Fully Informed Jury,” provides specific examples of areas where defense counsel can create tort reform in the courts.  The core idea of the article was to bring together five rules – all judicially created – that shield highly relevant evidence from the jury.

 

The article covers five areas:

• Where a jury does not know that a plaintiff has already received compensation for an injury                   (i.e., the collateral source rule);

• Where a jury does not know if a plaintiff was wearing a seatbelt;

• Where a jury does not know that a driver of a vehicle was under the influence of alcohol or drugs, speeding, or asleep at the wheel (this can be extended to other situations where a plaintiff’s wrongful conduct is not known by the jury);

• Where a jury does not know that if it finds a defendant even 5% or 10% liable, that the defendant may end up paying 100% of the damages (i.e., the joint and several liability rule); and

• Where a jury does not know that a plaintiff was exposed to asbestos from sources other than the defendant.

Since judges, not legislatures, created these rules, judges have the power to change them.  The article shows that the “rationale” for each rule, over time, has been seriously undermined.  Again, the old adage, when the reason for a rule ceases, so should the rule itself, is applicable in each of these situations.  That basic truth cuts through this article.

 

How to Accomplish the Goal of the Article – Tort Reform in the Courts

 

Creating tort reform in the courts requires careful cooperation and coordination between inside and outside counsel in making a decision to try to seek changes in existing tort law.  It usually is best to proceed with a pre-trial motion.  The motion should be brief, giving the trial court the reasons why it would be likely that the state supreme court would make the change in law.  The attached article provides case law and rationale for each change.  It is almost certain that the trial judge would deny the motion, but the issue is then preserved for appeal.

 

In some situations, defense counsel may be able to obtain a written opinion from the trial judge.  In one case, for example, a trial judge, who wrote an opinion indicating that he thought that the law should change, used this technique.  The judge also indicated that he would leave the decision of creating new law to an appellate court.  An interesting result occurred – the plaintiff’s counsel settled the case for a fraction of his original “ask.”  Plaintiff’s counsel believed that if the issue went to the appellate court or supreme court of his state, there was a likelihood that existing law would be changed.  He did not wish to be the plaintiff’s lawyer who helped make the law more pro-defendant.  A lesson learned from this experience is that if the law of the state is not changed, a well-briefed and argued attempt to do so could become a vehicle to obtain favorable settlements.

 

It is appreciated that pre-trial motions seeking to change existing law might not be well received by some trial court judges.  Counsel in each case must use their judgment as to whether seeking a change in the law could impede success at trial.  Experience has shown, however, that judges have been reasonably receptive to rational voices for change.  Defense counsel might need to share with the judge that personal injury lawyers have been doing the same thing for years.

 

The lead author of the article, Steven B. Hantler, Assistant General Counsel of Chrysler LLC, brought to the article his wisdom and experience from automobile product liability cases.  For that reason, some of the examples are particularly relevant to that field of law.  The article provides a ready and hopefully effective source on all of the issues it addresses, but it also is a platform for the technique of achieving tort reform in the courts on other issues.

 

Download Article, "Moving Toward the Fully Informed Jury"