Jim Coyne begins the discussion as it always begins -- with a recital of some of the more outlandish claims, awards and settlements:
A drunk driver runs a stop sign and crashes into a motorist who is doing 20 mph above the limit, injuring a passenger in the speeding car. The court finds the two drivers (both uninsured) 99 percent at fault, and the township 1 percent at fault for its failure to post a "Caution/Truck Crossing" sign. The injured passenger is awarded a $1.6 million judgment against the township.
A man attempts suicide by leaping in front of a New York subway train, sues the system because the operator failed to stop the train in time to prevent his injuries and collects over half a million dollars in an out-of-court settlement.
A burglar trying to break into a school falls through a skylight and hurts himself. He is awarded $260,000 plus $1,500 a month.
Coyne, executive vice president of the American Consulting Engineers Council, has made his point: the crying need for reform of the American tort law system. Not only is the litigation explosion driving up the cost of professional services (by increasing the cost of liability insurance) but it is actually reducing the availability of some services. A number of obstetricians, to cite one example, have stopped delivering babies rather than pay the astronomical cost of medical malpractice insurance.
The newly formed American Tort Reform Association, of which Coyne is president, hopes to do something about it. But as he and ACEC president Arnold Windman acknowledged in a recent interview, it is a good deal easier to cite examples of the problem than to fashion solutions.
Still, the two, now trying to fashion a variety of model statutes for consideration by state legislatures, are agreed on some necessary elements of tort reform.
The first has to do with the problems growing out of "joint and several" liability -- the principle that any party against whom a claim is sustained can be held liable for all of the claim. This is the "deep pockets" idea that allowed the injured passenger to sue the township that was only marginally responsible for his injury. Windman says he would like to see reestablished the principle of proportional liability.
Another element of reform is the contingency fee system under which lawyers are paid not on the basis of their effort but on the size of the award. One result is an increase in the number of "frivolous" suits. Possible reforms might require the person making an unsuccessful claim to pay the defendant's legal fees -- not just the court costs -- and also put a cap (say $250,000) on pain-and-suffering awards.
One key element of reform, say Windman and Coyne, is the needlessly high cost of litigation, including unlimited "discovery," which can force a firm to spend thousands upon thousands of dollars producing information and documents that have no direct bearing on the case. The principal result, beloved of contingency-fee lawyers, is that many companies, though demonstrably faultless, find it cheaper to make sizable settlements than to litigate.
Unfortunately, the two most important problems may be immune from legislation. The first is the rampant litigiousness of the American society. We have come to the point where we will sue for any offense, real or imagined, even though it might have been perfectly easy to reach a reasonable settlement through direct negotiation. Litigation has taken on some aspects of a lottery.
The second is the apparent demise of judicial common sense. The best safeguard against frivolous or marginal suits -- the New York subway affair or the case of the injured burglar -- would be a judge with the wit to throw them out of court.
Once a judge agrees to hear a case, even the silliest suit can net the plaintiff (and his lawyer) a nice little settlement.