Public Policy

Tort Reform

There is an unsettling movement in today’s political environment seeking to make legal representation and, by extension, justice through America’s courts, a luxury for a privileged few of our society. Proponents of tort "reform" would seek to limit the amount of damages recoverable in certain personal injury suits. Under such a regime, the actual damage suffered by the plaintiff would be disregarded - so that those injured catastrophically at the hands of corporate giants, facing a lifetime of pain and suffering, would not recover an amount that accurately reflected the magnitude of their injuries. This type of limit fails to fulfill the ultimate goal of the modern tort system: compensating injured plaintiffs for their injuries.

Other moves at "reform" would limit the amount of fees that an attorney could collect, again without regard to the costs associated with the prosecution of the case. Medical malpractice and product liability cases are typically filed and pursued on a contingency basis - the lawyer fronts the cost of the case and does not recoup these costs or make a fee unless the plaintiff recovers. Depending on the situation, pursuing such cases can create an extraordinary amount of cost due to expert fees and voluminous document discovery. Limiting fees in cases which incur substantial costs only serves to discourage cases that, although possessing true merit, have yet to be tested in the current legal landscape.

At the heart of the tort reform movement is a desire to limit access to society's great social leveler-the legal system. Invariably, the “tort reformers” avoid any rule that might hinder a large corporation from hiring teams of legal counsel to advance their legal or business interests. This type of reform simply serves to strip normal citizens of their access to courts by making it impossible for them to find an attorney who would bear the risk and expense that comes with a legal challenge.

Proponents of tort reform cloak their true intent by arguing that such extreme measures are necessary to stem frivolous lawsuits. These provisions are not tailored to reach that goal. In fact, federal and state laws already prohibit and punish attorneys who bring a lawsuit that a judge decides is frivolous. If the goal of tort reform were simply to target meritless lawsuits, then the most obvious route would be to strengthen the procedural devices already designed to ferret out cases not meeting strict legal requirements. Instead, these "reformers" seek to protect the corporate and business interests at the expense of those without adequate means for an attorney, thereby tilting the scales of justice in their favor. Barnes Law Group urges you to view with skepticism those who would sacrifice your access to justice-as a citizen, juror or party-just to achieve a monopoly of large corporations over the legal system.

Arbitration

Almost everywhere you turn when conducting business today will lead you straight into an arbitration agreement - from pest control contracts, cell phone contracts, to a basic rental agreement. As arbitration clauses become standard industry practice, consumers find themselves in a position without bargaining power. The market has provided no solution to this assault on citizens’ right to legal access. Consumers cannot simply go to a competitor for the same service - the arbitration clauses are there, too.

The disturbing trend has seen courts interpreting arbitration clauses as a waiver of important legal rights. For instance, courts have enforced an arbitration clause as valid even when the plaintiff possesses evidence that the contract containing the clause is void, illegal, or fraudulent.

Industry-wide arbitration agreements may also effectively prohibit class action attack of wrongful industry practices. Class actions typically present the most effective method in combating industry wide practices as the individual recoveries of such cases often do not justify the time and expense required for their prosecution. Put the victims of such practices together, however, and the strength in numbers allows the reversal of oftentimes unlawful and illegal practices. Without such private enforcement of corporate practices, effectively barred by arbitration agreements, unlawful business practices go unchecked.

The Barnes Law Group has successfully defeated arbitration clauses and supports legislation that better protects consumers against unfair arbitration agreements and that forces the industry to allow consumers a true choice whether to accept the substantial trade-offs associated with arbitration.