With the exception of those who profit from the injustice of America's tort system, everyone is in agreement that our civil liability system needs to be reformed. Here's how.
The Symptoms
The symptoms of the problem are openly acknowledged:
Frivolous suits: The McDonald's coffee suit is probably the most notorious of these, but reports abound of people suing over trivial incidents, and over injuries that are the plaintiff's own fault.
Outrageous awards: Hand-in-hand with the frivolous suits go the excessive awards. Punitive damages are the most prevalent of these abusive awards.
The Cause
Civil liability law in the United States has become divorced from its legitimate purpose of compensating victims for the harm caused by others.
The Cure
Establish civil liability law that is objective in form, function, and intent.
The Specifics
Establish an objective definition of liability. Liability should be the condition of having caused identifiable and financially correctable harm to another, by means of malicious action, negligent action, or contractual delinquency. It should not consist of having the deepest pockets.
Establish proof, beyond reasonable doubt, of proximate cause as the standard for a finding of liability. Cases should not be decided by the relative ability of the laywers involved to heap the evidence table with exhibits (also known as "preponderance of the evidence"). A finding of liability should be returned only when it is the only reasonable explanation for the evidence presented to the jury.
Establish fully-informed juries as the arbiters of liability. One of the recent suits against General Motors involved an accident caused by a drunk driver. GM was not permitted to inform the jury that the accident had been caused by a drunk driver. Why this did not result in the immediate impeachment of the judge is beyond me.
Limit awards to those financial losses suffered by the plaintiff as a result of the defendant's actions. Require that the plaintiff substantiate his claim by submitting the bills for repairs, valuation of irreparable and irreplaceable assets (the remnants of which become the defendant's property if the jury finds in the plaintiff's favor), medical bills for treatment of injuries suffered, income statements to support claims of lost wages, psychiatrist bills to support claims for pain and suffering, and the costs of litigation.
Abolish punitive damages and multiplied damages. The purpose of civil liability is to compensate the plaintiff for damages suffered, not to enrich him. Furthermore, the only interest anyone should have in the punishment of wrongdoers is the reform of their behavior; permitting the prosecutor—whether a private citizen or a public servant—to profit from the litigation serves only to give additional people an interest in wrongful judgments. This invariably leads to corruptive abuses. If the defendant is to be punished, charge him under the criminal code.
Allow for liens against assets which the defendant transfers in order to reduce vulnerability to litigation. This is something for the plaintiff who files a legitimate suit, only to discover that the defendant has, for example, sold his house to some third party (not named in the suit) for $100, and has disposed of his other assets in a similar manner.
Compensate defendants who are not found liable. A man who has done nothing wrong should not suffer harm.
Institute automatic findings of frivolity if the plaintiff contributed to the tort in any way. Nobody should be able to sue for something that is even partially their own fault.
Permit only convicted criminals to be defendants from torts arising from criminal acts. The parents of a kidnapped child should be allowed to sue only the kidnapper and any knowing accessories, and not, say, the company that manufactured the getaway car.
Implement full proportionality in awards. A crime victim sues his assailant and the company that made the gun used in the crime. The criminal is found 95% liable, the company is found 5% liable. The plaintiff is awarded $100 million dollars. The criminal is broke and pays nothing. The company remains on hook for their entire $5 million share. So the party that is 5% at fault pays every dime awarded to the plaintiff. That doesn't sound right.
Empower juries and appellate courts to find that the case before them is frivolous. When such a finding is made, it means that the trial judge has failed in his duty to dismiss such suits; require him to pay a portion of the compensation owed to the defendant.