Dear Prospective Client:
For years we have heard a steady drumbeat for tort "reform" from the insurance industry and others blaming the legal system for all of society's ills (everything from economic decline to skyrocketing insurance premiums). They've distorted the facts and mounted a nationwide campaign of misinformation to convince legislatures and Congress to severely restrict the legal rights of average citizens and small businesses. There's no longer a level playing field in the courtroom. Your rights to access the courts and jury trials have been limited while those with money and power continue to enjoy full access. Ask yourself why.
As early as 1986, statutes were enacted in Colorado to seriously limit your right to have juries decide who should be held accountable when you are harmed. For example, in place of jury decision-making, Colorado has placed arbitrary limits on the amount of medical bills and lost wages you are entitled to when you've been injured, regardless of the severity of your injury. In Colorado, time after time the privileged few have been partially or totally immunized from responsibility for harming others (e.g., ski resorts, llama trekkers, liquor stores and bars, sellers of unsafe baby cribs, public utilities, and negligent homebuilders, to name just a few).
To sell the public, politicians, and the media on the need for tort "reform," crises after crises have been fabricated. Big corporations have manipulated statistics, slanted facts and, yes, I will say it - they have outright lied. I want to share some of their tactics. I don't know about you, but nothing infuriates me more than to have someone misuse power and trust to gain an unfair advantage. I have put together a list of what I like to call, "The Five Big Lies." I believe these lies, although only part of the entire picture, clearly paint the landscape of how we have all been misled and manipulated.
Lie Number 1: America's courts are overwhelmed by lawsuits.
The truth: Suits filed in federal and state courts are decreasing. According to data from the Administrative Office of the U.S. Courts, federal tort filings decreased 5% in the last decade. Tort trials in 2004 dropped to just 883 - and there were 4,506 twenty years before. The US Bureau of Justice Statistics (BJS) revealed civil trials dropped by 47% between 1992 and 2001. In Colorado civil trials have declined 54% in the last fifteen years.
During 2003 there were almost 249,000 cars in crashes in Colorado and only 3,338 car crash injury lawsuits filed. "The typical injured person does not even consider the notion of seeking compensation from some other person or entity. Only 10 percent ever file a claim, which includes informal demands and insurance claims. Only 2 percent file a lawsuit." These statistics are at odds with any notion that we live in an overly litigious society. (Rand Institute).
Lie Number 2: Our economy is being destroyed by outrageous awards given by runaway juries.
The truth: According to the BJS the median inflation-adjusted award in all tort cases dropped 56% between 1992 and 2001. In 2001 the median jury award was $28,000. Certainly not outrageous. In Colorado the number of personal injury suits filed per 1,000 people has dropped dramatically.
Lie Number 3: There are too many frivolous lawsuits.
The facts speak for themselves. The number of suits and the size of verdicts are significantly down. When was the last time you read of an outrageous verdict in Colorado? When did you last hear of a frivolous law suit in this State? Why are big business, the insurance industry and special interest groups continuing to beat the tort reform drum?
You may have heard the stories about these frivolous suits.
The robber who fell through the skylight and then sued the building owner.
The man who tried to trim his hedge with a lawnmower and cut off his hand.
The strong man contestant who developed a hernia, while towing a refrigerator up a hill, and sue the contest sponsors.
Best of all, the Winnebago operator, who was injured when his motor home ran into a ditch after he left the driver's seat of the moving vehicle to fetch a cup of coffee from the galley. He supposedly sued the manufacturer.
Although whoever dreamed up these fictitious lawsuits had a vivid imagination, a search of court records throughout the nation revealed no such suits have ever been filed. These fabrications (all debunked at www.snopes.com) might be comical if it were not for the fact that the stories were invented to help persuade you and everyone that our civil justice system is broken and tort reform is necessary.
Lie Number 4: It costs Americans $300 Billion per year to pay for lawsuits.
The truth: This oft quoted fable first appeared in the late 1980s, invented by Tillinghast-Towers Perrin. Its inflated numbers scared Americans into believing that our system of civil justice harmed the US economy. Tillinghast's estimates were roundly criticized by experts. Finally, in late 2004, this insurance-related firm publicly admitted that its annual study was actually a myth. The figure measured costs, they wrote, "not directly related to ... tort claims." Tillinghast included:
insurance industry overhead (executive salaries, advertising and inefficiencies) and
payments for property damages (fender-benders) and non-tort PIP benefits without any lawyer, courts or lawsuits involved.
These two factors alone are half the Tillinghast total. The study never looked at or included costs saved by the tort system in terms of injuries and deaths prevented due to safer products and practices, wages not lost or health care expenses not incurred.
Insurance industry profits are booming. The property-casualty insurance industry enjoyed record-breaking $38.7 Billion profits in 2004, the highest ever (Insurance Services Office). US health insurance firms recorded the highest profits in a decade (Weiss Ratings). Average pay for the five top executives at the largest health insurers almost doubled over the last four years to $3 Million a year (Investors Business Daily). Health insurers raised premiums 59% during the same four-year period (Kaiser Family Foundation).
Lie Number 5: If we pass so-called tort "reform," insurance costs will drop.
Colorado is a laboratory rat for the tort "reformers." The American Tort Reform Association says our state passed ten out of their ten major tort reforms (the only state to do so). Our judges punish those filing frivolous cases; lawyers must file certificates that their case "does not lack substantial justification." Our laws require judges arbitrarily to cut down awards for:
Punitive damages and even
Economic losses (if the special interest has a high-powered lobbyist).
Think about that last one: we let certain special interests escape paying for the actual medical bills and lost wages of those they hurt- even if they've broken the law when they cause the harm!
The National Association of Insurance Commissioners reports that on a per resident basis, back in 1984 Colorado residents paid insurance premiums of $512; the national average was $513. By 2003, Colorado premiums per capita had grown to $1,711 - but US premiums were up to only $1,452. Would you be surprised to learn that insurance profits are higher in Colorado than in the US as a whole?
Why are these people lying? Think about those amazing insurance company profits. Consider the size of executive salaries. Understand why insurance companies that are in the business of assessing and insuring risk, salivate over the ability to charge huge premiums for little or no risk, because tort reform has eliminated risk from the business.
Someone once said, "Fool me once, shame on you - fool me twice, shame on me." Let's not allow ourselves to fooled again. Get the facts. Educate yourself Make sure the legal rights of average citizens are the same as those enjoyed by the privileged few. Educate your legislators, the media, your family, friends and neighbors. Tell anyone who will listen and even those who won't, that the lying needs to stop and that our constitutionally-guaranteed rights need to be protected.
Pete Cordova, Esq.
Attorney at Law