No fair trial for tort changes…
Stashed away in the budget bill unveiled in February by Governor Doyle is a repeal of fairness reforms passed 14 years ago to protect against lawsuit abuse (and yes, Virginia, they were being abused.) Under the provision, called “joint and several liability,” even a person judged to be only one percent at fault could be forced to pay 100 percent of the damages.
Governor Doyle flat-out blew it on this one and it is an attempt to bring back something that took years to get rid of in Wisconsin. The Assembly wisely tossed the provision out of their version of the budget and then Senate Majority Leader Russ Decker decided that he wanted it back in. Bad move.
Joint and several liability has nothing to do with the state budget and for that reason alone it ought to be pulled. But more importantly, this change is wrong and there is no mystery about it. We know it because it has been this way before. There were many people in the State of Wisconsin who worked to change the tort liability standard into something that is rational and that effort finally succeeded in 1995. Most reasonable people would agree with it: that you should pay for anything you are at fault for, but you shouldn’t have to pay for other people’s damages. If you’re 10 percent at fault, then you should pay 10 percent of the damages – not more because you happen to have the money or the coverage.
I’m not interested in getting into characterizations about trial lawyers. I think they serve an important function. They provide an avenue for justice that would often not be available to legitimately injured parties. Trial lawyers help people who would otherwise find themselves unable to press a case against the tremendous resources of corporations and insurance companies aggressively protecting their interests. This is an adversarial game and trial lawyers help to provide a level playing field in many, many cases.
But at the same time, it should be about justice – not about making sure there is a bottomless pit for settlements in any case that you care to make, whether the people paying are paying fairly in proportion to their fault or not. That approach ends up dragging defendants into cases for no better reason than that they happen to have deep pockets. Contrary to what some may believe, the most important thing isn’t that injured parties get everything they ask for. It’s sort of like saying that if there’s been a murder, then somebody should hang – and we don’t really care who it is, as long as they may have been in the neighborhood.
It doesn’t just cost money for the entities that are directly involved. It ends up costing everyone. Trust me. You pay for this stuff. It adds a tremendous level of risk to going to trial and often, it is far too much. It’s nice for trial lawyers to be able to work with that big thumb on the scale of justice and it can lead to a lot of settlements. Trial lawyers may argue that the big cases get all the publicity and there are really relatively few of those; that the important thing is for victims to be compensated. It’s sort of like arguing that not many people are unjustly hanged (and then finding out that it is because they were railroaded into plea bargains for long prison terms for crimes they may not have committed.)
Under current law, a defendant must be at least 51 percent liable for a defendant’s injury before becoming liable for all of the damages caused by other defendants. That’s fair — and the silence about why it really ought to be different than this is deafening.
The initiative to roll back tort law changes would be bad enough as separate legislation attempting to stand on its own, but at least that way it could legitimately be debated and individual lawmakers could be held accountable for their actions on this specific measure. To bury this provision in the budget is reprehensible, but so is the change in the law being advanced.