Effective Tort Reform

March 2012

The Journal Record

 

Brooks Richardson
State legislators have struggled for years to enact effective tort reform. There have been powerful arguments and special interests on both sides of the fence. The result: piecemeal enactment of ineffective tort reform that partially but inadequately protects only particular categories of defendants, and blindly and arbitrarily inhibits the recovery of legitimate damages by legitimate victims. This is not the kind of reform we need.
 
You want real litigation reform? Focus on how lawyers are paid from these cases. Shakespeare went overboard when he wrote “First thing we do, let’s kill all the lawyers.” But he had a point. Numerous lawsuits that should never have been filed, or could be resolved quickly for legitimate amounts to plaintiffs even after attorneys’ fees, are driven by lawyers’ desire to push into the stratosphere noneconomic damages that their clients never suffered. What is driving this desire? Attorneys’ fees are usually calculated as a percentage of their clients’ total recovery.
True, effective tort reform would simply eliminate the chief financial incentive of lawyers to drive up artificial damage claims. Legislators should make noneconomic damages exempt from the contingency fee calculation by requiring that such awards be placed in trust for the benefit of the client only. This would not prevent attorneys from fulfilling their ethical obligation to zealously advocate for their clients. If their clients suffered real emotional distress, or the defendants acted so badly they should be punished, then those types of damages are and should be recoverable. Ethical attorneys will continue to advocate for that recovery. There are such legitimate cases. But when plaintiffs have not suffered untold thousands (or millions) in emotional distress and have no evidentiary basis for claiming those types of damages, they do not need lawyers to be financially incentivized to advance such claims.
This one change would have more of an effect on the true goals of tort reform than any other that has been advanced. It would lessen the chances that true victims are unable to obtain full recovery of legitimate damages because of arbitrary damage limits promoted by certain categories of defendants with powerful lobbyist groups. It would help return the civil justice system closer to the original concept of justice.
Brooks Richardson is a shareholder and director at Fellers Snider in Oklahoma City.
This article appeared in the March 28, 2012, issue of The Journal Record. It is reproduced with permission from the publisher. 
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