Lawsuit Abuse, Part 1: The Enigma

It's a theme that's oftentimes chanted, but not fully understood: lawsuit abuse (AKA "tort reform"). Primarily, advocates of tort reform are concerned with civil wrongs. But tort reform is such a broad and expansive subject that it's not enough to simply state, "We need to stop lawsuit abuse!", or, "We need tort reform!".

Over the next several posts, I'll address the main talking points of advocates of tort reform, but in piecemeal. By breaking it down into palatable parts, I aim to be informative while avoiding a bogging down in meaningless details.

To begin, I believe there are two main areas of tort reform:
1. Procedural law: The process of filing a lawsuit and the trial
2. Substantive law: The law that governs the lawsuit

Tort reform advocates often criticize procedural law on the grounds that it's too easy to file a lawsuit, or that there are not enough safeguards in place to protect innocent defendants.

Substantive law is criticized for its legal reasoning. It's what allows the judge or jury to justify the award.

Since I'm located in Tennessee, I'll use my knowledge of TN law. It's important to know that almost every state is different when it comes to tort law. While there's a tendency for states to group together into separate "legal thoughts", there are several different tests and theories used by different states for different tort concepts. The result is a vast ocean of legal theories, and it's easy to drown in it.

If advocates of tort reform want to be successful, it must be on a state-by-state basis, and not through a national, collective broad-swipe at tort reform.

Before I dive any further, it's critical to understand that there is no such thing as a perfect legal system. The legal system was designed and is updated by brilliant humans, but they remain just that: humans. There are inherent flaws that are the result of man's inability to obtain perfection on his own.

But we are capable of fine-tuning the legal system, abolishing laws where need be, or fixing procedural processes. I believe the war of tort reform lies in the fine-tuning.

One more thought: Every lawsuit is different. There are no same set of facts. It's critical not to make generalized statements when it comes to the law.

I'll provide my personal opinion on different legal criticisms when I feel it's warranted.

For Part 2, I'll discuss the pesky concept of punitive damages and why it needs to remain untouched.