Civil Justice Reform - Law Firms A Revolutionary, Not Evolutionary, Idea: How Defendants Can Achieve Tort Reform In The Courts

Tuesday, November 1, 2005 - 01:00
Victor E. Schwartz
Leah Lorber

In-house counsel can act as strategic command in a revolutionary new approach to legal reform - winning tort reform through the courts.

As any torts casebook clearly shows, appellate courts make more than 95 percent of tort law. Tort law is common law. It is organic. It is subject to constant change. But as casebooks also show, the engine for change has been almost a monopoly for plaintiffs' lawyers. That does not have to be true.

Corporate counsel can work with outside trial and appellate counsel to target their litigation strategies and bring about tort reform in the courts. Business defendants can change outdated legal rules, and make them fairer to corporate defendants.

How can they do this? Corporate counsel can direct their trial counsel to start explaining at the trial level what changes are needed in the common law of torts and why. If defense lawyers lay the groundwork at trial, they can follow through on these opportunities, if and when the case goes up on appeal. Appellate court judges know that while the doctrine of stare decisis is important, it does not prevent them from changing a rule of law when that rule no longer satisfies the demands of modern life. A well-worn law school observation about the common law still rings true: when the reason for the rule changes, the rule should change. Judges know this and follow this fundamental guideline.

A number of legal rules that apply in tort cases fit that situation. Here is an example. Everyone (or almost everyone) knows he or she should wear a seatbelt. In response to a 2003 poll by the National Highway Transportation Safety Administration, 87 percent of those surveyed said that they "buckle up" all the time. Because seatbelts prevent or lessen injuries in vehicle accidents, it is mandatory to wear them in many jurisdictions. In automobile accident cases, jurors instinctively wonder if the plaintiff was wearing his seatbelt. Nevertheless, most jurisdictions will keep seatbelt evidence from the jury. This rule can and should be changed.

This rule made sense in the 1960s, when seatbelts were relatively new. Not all cars had seatbelts and their effectiveness had not been established. This was also a time when most states still followed contributory negligence rules that kept the plaintiff from recovering any damages for an injury, no matter how severe, if the plaintiff was even 1 percent at fault. It is not surprising that courts of that era did not want to let the jury "speculate" about whether seatbelts could have prevented or minimized the plaintiff's injuries.

In 2005, all of these "assumptions" have changed. Seatbelts have proven to be highly effective. Further, the vast majority of jurisdictions have adopted comparative fault rules, where juries can find plaintiffs partly at fault and still decide to allow them some recovery for their injuries. These developments in public safety and the law make it no longer necessary for courts to keep juries from hearing facts that will help them assess liability and damages. But this rule will not change until corporate counsel help make it change. It can and will be done.

Many other outdated common legal rules can also be changed; for example, the rule that keeps a jury from hearing about the consequences of joint liability. Defense lawyers in jurisdictions as pro-plaintiff as Hawaii have persuaded the supreme court of that state to change the law and let the jury know that if it finds a defendant 1 percent at fault, he or she may have to pay the entire judgment. In effect, that knowledge keeps juries "on-guard" about making such findings. Similarly, efforts can be made in courts to change the long outdated collateral source rule and allow the jury to know that the plaintiff already has been paid for his or her lost wages and medical costs. A law review article on the subject has recently been published, Steven B. Hantler, Victor E. Schwartz, Cary Silverman, and Emily J. Laird, " Moving Toward the Fully Informed Jury," 3 Geo. L.J. Pub. Pol. 21 (2005). The American Justice Partnership, a national umbrella organization working with groups that are interested in obtaining fair and well-reasoned changes in tort law, has posted this article on its website,

Achieving "tort reform in the courts" is going to require creative thinking. It will need a well-thought-out, coordinated plan for change. It will take careful planning to take the right cases up on appeal to get a law-changing ruling from the state's high court. Even if the law is not changed in a particular case, these efforts would and have promoted favorable settlements. Plaintiffs' lawyers who appreciate that defendants are serious about changing outdated, one-sided legal rules also will realize that they themselves will have to respond to the defendant's new arguments, which in all cases will require time and effort in legal research. This is a real task about which plaintiffs' lawyers are not enthusiastic. Moreover, some plaintiffs' lawyers may not want to risk being the attorney in a case where the state supreme court changes the law to favor defendants. In other words, working to bring about tort reform in the courts is a "win-win" proposition, if it is done right.

AJP soon will make available on a "how to manual" for achieving tort reform in the courts. This manual will provide a step-by-step "cook book" on how to achieve tort reform in the courts. It also will contain specific model motions with supporting legal memoranda and jury instructions to assist defense counsel in these efforts. Here are some highlights:

  • Corporate counsel should begin working on tort reform in the courts at the pre-trial level in jurisdictions where state high courts are receptive to such efforts. Corporate counsel should work with their outside counsel to investigate opportunities for legal reform in the cases on their dockets.

  • Corporate counsel should make sure that efforts to enact tort reform through the courts will fit with the litigation strategy and budget for the case.

  • Corporate counsel should work with their outside counsel to develop their strategy. They should consult with their company's insurers when appropriate to do so.

  • Both corporate and outside counsel should decide whether the change is needed in that state. How old and persuasive is case precedent? Does the case present the right facts to get the best results? Is the timing right - how will media coverage of the case or similar cases or current legislative consideration of the issue impact attempts at common law tort reform?

  • Counsel should make sure that courts have authority to change the law. There obviously is a need to avoid wasting resources, alienating potential political allies, or spinning wheels. Counsel should double-check to see if the legislature has enacted statutes addressing the issue or delegated rule-making authority to the executive branch.

  • Counsel should carefully consider the make up and preferences of the jurisdiction's appellate courts. Some courts may tend to lean more toward plaintiffs' interests than defense interests, or vice versa. Some courts defer to the state legislature for substantial changes in legal doctrine; others are more willing to act on their own. Nevertheless, it is important to note that in most cases, defendants are likely to be asking for changes in legal rules created by judges. When judges create rules, they can change them.
  • It is essential that trial counsel ask the trial court to make the legal changes, through appropriate pre-trial practice. Then, counsel must follow-up as required by court rules, with offers of proof, and requests for jury instructions. If the trial court denies these requests and the defendant loses at trial, the defendant can appeal the issue to seek a positive ruling by an appellate court. Even though trial judges are required to follow binding precedent, they have and will issue orders recommending that an appellate court grant a defendant's well-reasoned requests for a change in the law.

    From pre-trial determinations through the appeal of an adverse ruling, corporate counsel and their outside counsel should take advantage of the expertise of organizations that are concerned with the fair and balanced development of principles of civil justice law. At the national level, groups include the Product Liability Advisory Council, the National Chamber Litigation Center at the Chamber of Commerce of the United States, the American Tort Reform Association, the National Association of Manufacturers, and the American Justice Partnership. At the local level, groups such as the Illinois and Texas Civil Justice Leagues, Citizens Against Lawsuit Abuse chapters, state Chambers of Commerce, and others can help provide valuable counsel and support.

    Through amicus curiae briefs, these and other organizations can help persuade state supreme courts to take cases involving tort reform in the courts. They can provide broader public policy perspectives on the merits of the issues. These groups also can educate the public and the media about the need to change outdated law in a specific area.

    For decades, the personal injury bar has been successful in persuading judges to change the common law to make it more plaintiff-friendly. If personal injury lawyers continue their near-monopoly over fostering legal change in the courts, tort law will become more and more pro-plaintiff over time. Defendants can and should begin a counter-revolution in the courts. As Samuel Warren and Louis Brandeis wrote in 1890: "[T]he common law, in its eternal youth, grows to meet the demands of society." Corporate and outside counsel can use this well-known principle to persuade judges to assure that tort law better reflects the way people live and work today.

    Defendants have the power to positively change tort law by persuading courts to update old common law rules so they are a better fit with modern needs. If businesses and outside counsel commit to work together and pursue tort reform in the courts over the next decade, the results should equal, and may surpass, legislative tort reform.

    There is a final bonus to tort reform in the courts. Courts would be highly unlikely to hold their new rules "unconstitutional" as they have done too many times with legislative reforms. Let's begin now. We offer and pledge our help.

    Victor Schwartz chairs the Public Policy Group of Shook, Hardy & Bacon L.L.P., Washington, DC. He serves as General Counsel to the American Tort Reform Association and co-chairs the American Legislative Exchange Council's Civil Justice Task Force. He is co-author of the most widely used Torts casebook in the United States, William L. Prosser, John W. Wade & Victor E. Schwartz, Cases and Materials on Torts (11th ed. 2005). Leah Lorber is of counsel in the Public Policy Group of Shook, Hardy & Bacon L.L.P., Washington, DC, where she serves as Co-Counsel to the American Tort Reform Association.

    Please email the authors at or with questions about this article.