The Myth of Tort Reform

The Myth of Tort Reform

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Implicit in the meaning of the word reform is the concept of improving or making better. It is a matter of great public dispute whether the powerful interests who have co-opted the term tort reform have done so to make the justice system better or simply to make themselves less accountable to the victims of their negligence.

In Connecticut, the first serious wave of tort reform occurred in the mid-1980s. Since that time, there has not been a flood of frivolous lawsuits or excessive jury verdicts. We direct your attention to various websites that have covered this issue.

Frivolous cases waste everyone’s time and money; consequently, they are a rarity, despite the one or two that make headlines. Judges are invested with discretion to strike (throw out) such claims. Here in Connecticut, there is a statute that empowers the party wronged by a frivolous case to sue for double or treble damages, in order to recover any costs incurred defending a frivolous case. Section 52-568 of the Connecticut General Statutes provides:

Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.

Interestingly, it is far more common for defense lawyers to assert frivolous defenses than plaintiffs’ lawyers to bring frivolous claims. Injury cases are almost exclusively brought as contingent fee cases. That means that the plaintiff’s lawyer does not get paid unless there is a recovery and thus, has very little incentive to file a bad claim. On the other hand, defense lawyers who are hired by insurance companies to try to scare plaintiffs get paid on an hourly basis regardless of the outcome of the case. So they get paid even if they lose the case or their defenses are thrown out.

Keep an open mind about tort reform; who is really abusing the judicial system?