A third key to success is that the legislation contains provisions that conform to the law of common sense.  This gave the overall legislative package credibility, not only among members of the legislature but the public at large.  (KRC: WTTW, Instituting Reforms to Conform the Law to Common Sense, page 10)

Whenever the law is disconnected from general perceptions of fairness, common sense, and justice, the law and the judicial system suffer.  The flip side of this truth is that legislation that reconnects the law with general perceptions of fairness, common sense, and justice is much easier to justify and sell.  (KRC: WTTW, Instituting Reforms to Conform the Law to Common Sense, page 10)

As an example, the 2004 law contains a provision that eliminates all vestiges of joint and several liability and implements pure several liability.  In simple English, a defendant is responsible for paying only that portion of damages that the jury finds he caused.  Conversely, a defendant is not required to pay for any damages for which he did not cause.  (KRC: WTTW, Instituting Reforms to Conform the Law to Common Sense, page 10)

A major key to success was being able to point to this provision (i.e. pure several liability) as a reason for why change was necessary.  The public, and non-lawyer legislators, could understand and support this change because it seemed fundamentally fair.  (KRC: WTTW, Instituting Reforms to Conform the Law to Common Sense, page 10)

Conversely, opponents of tort reform would often find themselves tied in knots when attention was focused on this particular issue because they could not give a convincing answer as to why someone should have to pay for something they did not cause.  Yet, the tort reform opponents fought this issue as they did all the other issues.  The result was that opponents lost not only on this issue, but they lost credibility in general on other issues because their arguments with regard to allocation of fault was contrary to widespread perceptions of fairness, common sense and justice.  (KRC: WTTW, Instituting Reforms to Conform the Law of Common Sense, page 11)

To win on this argument, the issue was intentionally simplified and expressed in examples that ordinary people could understand.  Also, the term “innocent seller” was coined.  Why should a drug store be liable in tort for selling a FDA-approved drug?  Why should a car dealership be liable in tort for merely taking and selling a car with a defective gas tank when the manufacturer designed and manufactured the car and the gas tank, and the car dealership had no knowledge of the defect?  (KRC: WTTW, Instituting Reforms to Conform the Law of Common Sense, page 11)

The opponents of tort reform could not answer these questions honestly because the real reason they opposed the innocent seller provision had nothing to do with right or wrong.  Instead, their opposition was really based on wanted an in-state defendant to destroy diversity jurisdiction in federal court.  (KRC: WTTW, Instituting Reforms to Conform the Law of Common Sense, page 11)

In summary, a major key to success in Mississippi in 2004 and the tort reform fight is the fact that the bill contained a few key provisions that were substantively sound, but also could be used as examples of how the current law was out of touch with common sense.  (KRC: WTTW, Instituting Reforms to Conform the Law of Common Sense, page 12)