Ralph Nader writes about erosions in tort law which limit the ability of a citizen to be heard in court. (“Suing for Justice,” by Ralph Nader, Harper’s, April 2016, accepts 57-62.) A tort, which goes back to Roman times, is the due process an individual can exercise to redress a perceived wrong. (Click)
Nader’s concern is for the on-going changes corporate lobbyists introduce which, when greased into law with campaign contributions, make it difficult for an individual to obtain justice. Basically, he sees a 3 pronged assault at work. First, caps have been placed on plaintiff awards that, in some cases, are so low, attorneys refuse to take contingency cases, the payout being inadequate to cover the cost of the defense. Second, liability has been redefined narrowly, making it difficult for a corporation to be found liable. Third, many of today’s contracts require disputes to be settled through binding arbitration rather than a court hearing. I’ll explain the last obstacle first.
The waiver: We’ve all signed them. The waiver exists on many cell phone contracts and those we must agree to before we gain access to internet sites. The customer relinquishes the right to a trial and accepts binding arbitration in its place. An arbitrator substitutes for a judge and while the process is intended to be fair, there is at least one drawback. Judges are paid by a branch of government. An arbitrator is paid by the clients. Appearing to be too soft or too hard on plaintiffs can, overtime, affect an arbitrator’s reputation and make it difficult to continue in business. That coloring could affect an arbitrator’s rulings. To be fair, judges have biases, too, all things being human.
Defining liability: Corporations and insurance companies have worked hard to narrow the definition of liability, almost to the point where a victim can be made to seem at fault. “A federal law has already been enacted that prohibits almost all suits by victims and their next of kin against an aviation company after a plane crash if the offending aircraft is more than 18 years old.” (Ibid. 60.) Apparently, anyone foolish to get on a plane that’s old gets what’s coming to him. Monsanto has been equally effective in whittling away the consumers’ rights. A farmer to whom the company has sold bad seed is only entitled to seed replacement and will not be compensated for a year of lost income. (Ibid. 59.)
Capping fees: As I wrote in the beginning, capping the amount of an award makes it difficult for an individual with a justifiable complaint to find an attorney willing to sue on contingency. In a recent medical malpractice case, for example, where inept medical treatment left a child severely brain damaged, the jury awarded the family $7.5 million. Unfortunately, the award conflicted with state’s cap of $250,000. The amount actually awarded couldn’t compensate the family for a lifetime of care for their disabled son, let alone reimburse the attorney for his or her time. (Ibid, pg. 60)
Nader’s article offers more details than I have space to discuss here, but what I’ve revealed should be enough to peak an interest in the arcane subject of tort law. Every day, each of us is one medical or product liability disaster away from discovering that due process may offer no clear path to justice.