The case for needed legal reform: frivolous lawsuits are tieing up the courts, costing taxpayers millions, and making a mockery of the American legal system

USA Today (Society for the Advancement of Education), July, 1998 by Spencer Abraham

Frivolous lawsuits are tieing up the courts, costing taxpayers millions, and making a mockery of the American legal system.

Our legal system is broken. The U.S. has been transformed from a nation of friends and neighbors into one of actual and potential litigants. The separation of powers and the provisions of the Constitution have been defied by activist judges who prefer making laws to observing them and substituting their will for that of the people.

Those with genuine injuries and claims should not be kept from seeking redress through the judicial process, but the damage being done by frivolous lawsuits is all too obvious. The current system hurts the economy and U.S. competitiveness. Litigation adds 2.5% to the average cost of a new product in America, and the figure is much higher for advanced technology and medical goods and services. One research group reports that court costs, awards, and lost time cost the economy $132,000,000,000 in 1991 alone. Imagine how that figure has soared in recent years. Frivolous lawsuits also result in decreased innovation. According to a Gallup survey, one of every five small businesses decides not to introduce a new product or improve an existing one because of fear of litigation.

The rules for playing the frivolous lawsuit game are quite predictable. The first is to sue anyone in sight, no matter how minimally connected they are to the injury. As a case in point, a man who attended a boxing match, had too much to drink, got into an altercation, and fell down a flight of stairs died as a result of his injuries. One of the defendants named in the suit brought by his family was Ticketmaster, the company that had issued tickets to the boxing match.

The second rule is to claim that the defendant should protect the plaintiff against injury regardless of circumstances. It doesn't matter if the plaintiff is negligent or willfully disregards proper safety procedures. In the case of Piper Aircraft v. Cleveland, a man bought an airplane and decided to remove the pilot's seat and attempt to handle the controls from the back seat. The plane crashed and he was killed. His family sued Piper Aircraft and collected a $1,000,000 judgment. His death was a tragedy, but to claim that the company that built his plane was to blame simply is wrong. It perverts the traditional definition of legal responsibility, making virtually every manufacturer liable for injuries that occur through deliberate misuse of a product.

The third rule is to establish any conceivable level of negligence against the party with "deep pockets," so that party can be forced to pay all of the damages. This is known as the doctrine of "joint and several liability," which currently prevails in our legal system. It means that, if a defendant is one percent negligent, he or she still can be held responsible for 100% of the damages.

Several years ago, Walt Disney World found out how unjust this doctrine can be. A young couple decided to play "bumper cars" on the Grand Prix go-cart track. Those of you who have been to the Magic Kingdom know how difficult it is to do this. The cars are spaced so they can not touch each other, and they can not go more than about seven miles per hour. At the very end of the track, where the drivers disembark, however, there is a momentary window of opportunity in which a determined and reckless driver can crash into the car ahead. Apparently, that is what happened in this case. The young man finally was able to do what he had repeatedly tried to do and crashed into his fiancee's car. She was injured and went to court. The jury found that the young man was 85% negligent; the young woman was 14% negligent; and Walt Disney World was one percent negligent. Guess who ended up paying the entire judgment? The answer is Disney, of course, since it had the deep pockets.

The fourth and last rule is to sue in states or jurisdictions where punitive damage awards typically have been astronomical. Any attorney can tell you that where you sue sometimes makes as much, if not more, difference as who you sue and why. There are particular courts and judges that are notorious for awarding millions of dollars to plaintiffs in frivolous lawsuits. They, however, never are forced to pay the price for their bias.

The rules in the lawsuit game need to be changed. The first relimiting reform is limiting punitive damages. Originally intended to be a rare punishment imposed on convicted defendants who had acted with an unusual degree of recklessness or viciousness, punitive damages have become increasingly common and, in many instances, the dollar amounts have been astronomical. A cap would permit plaintiff to recover their due--full compensation for true losses and injuries--while discouraging profit-seeking lawsuits and the use of punitive damage claims to frighten defendants into agreeing to out-of-court settlements. Moreover, it would free up the court calendar and lessen the huge burden litigation has placed on our economy.

The second change is replacing joint and several liability with proportionate liability. This would lessen the unfairness and expense of the current system in which defendants with "deep pockets" involuntarily must serve as insurers for everyone who crosses their path. Under proportionate liability, plaintiffs no longer would be able to defendants with the most money to pay just because they can.