George Read Speaks on Tort Reform

“You all know me as a defender of the rights of the small against the large as demonstrated by my insistence of the rights of my home State, Delaware.  My record as Chief Justice of that State also shows me to be one who believes in equal justice under law.  However, I am appalled at the greedy nature of many citizens, businesses, and litigators today in bringing what I consider unreasonable, if not frivolous, lawsuits.

“The litigious nature of today’s society results in unwillingness by individuals and corporations to take risks however prudent those risks may be.  As a result, the rewards which might be commensurate to the risks are often foregone.  While judges are empowered to declare lawsuits frivolous, they are seldom inclined to do so because few lawsuits meet the legal definition of frivolous.  Many instances occur of lawyers encouraging clients to bring suit simply to get a settlement which can be substantial but less than the cost (to the defense) of winning a suit.  Sometimes such settlements include clauses restricting the plaintiffs from divulging the terms.  Other times the defendant is allowed to settle without admitting guilt.  A series of reforms is needed to make our civil suits less ‘frivolous’, more efficient and less stifling to creativity.

 “Unfortunate accidents can and will occur.  If any party is employing generally accepted practices in their community, they should not be subjected to a lawsuit as a result of any accident.  People with money, large corporations, doctors, and many others are at risk today for what we might consider reasonable and prudent actions.  Hence they carry large amounts of insurance, or worse avoid risks where the potential benefit outweighs the risk.  For example, the idea that doctors would choose to not prescribe what they believe is the best medication for an ailment because it could make them susceptible to a lawsuit is appalling, yet reportedly 40% of physicians have done just that.  Following this principle it can’t be long before those same doctors are sued for prescribing inferior medications.

“Lawyers are a key to making certain that there is merit in any suit that is brought.  If any civil suit is lost, the plaintiffs’ lawyer(s) should pay all costs incurred by the defense and the courts unless specifically exempted (rarely) by the judge when the judge believes that the plaintiffs’ case had substantial merit despite the decision.  This would assure that the plaintiffs’ lawyers believed that the case had substantial merit before undertaking it.  Some States have similar laws already although the data on effectiveness of such laws is not readily available.

“All details of settlements of any kind should become public record, and a settlement should require a statement of guilt acceptable to both parties.  The idea that a wealthy entity could pay to avoid bad publicity is fundamentally unfair because it denies the same right to poorer parties and it also denies legitimate information to other entities who may have been similarly injured or who are involved in similar settlements.