Page 59 - Impact: Collected Essays on Expanding Access to Justice

Tort reform: Blocking the Courthouse Door and Denying Access to Justice
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Joanne Doroshow1
The right of injured people to sue and collect compensation from the perpetrators of their harm is one of the great achievements of American democracy . In our system, the poorest and most vulnerable can challenge the largest corporation or institution and hold them accountable for causing injury . With corporate wealth and power dominating the executive and legislative branches of government, the civil courts are among the only places left in our American system where individuals can successfully confront large companies on a somewhat level playing field . And civil juries are the one arena where average citizens can participate directly in government, where they can have a direct impact on events and ultimately the state of their lives . This paper will discuss the importance of the civil jury system, and how recent changes in tort law – i .e ., “tort reform” - are restricting access to civil justice by the sick and injured . We will address three types of tort reforms that are having a particularly severe impact on access to the courts: caps on damages, contingency fee limits, and forced arbitration clauses .
Introduction
The right to a civil jury trial is among our earliest rights as Americans . The American colonists believed that trial by jury was an important right of freedom .2 England repeatedly attempted to restrict the right to jury trial in the colonies, as colonial administrators made increasing use of judge-tried cases .3 In virtually every major document and speech delivered before the Revolution, the colonists portrayed trial by jury as, if not their greatest right, one that was indispensable .4 In 1791, during its first session, Congress drafted the Bill of Rights, ratified as the first ten amendments to the Constitution, securing the right to civil jury trial in the Seventh Amendment .5
But the right to civil jury trial amounts to a guarantee without any practical significance if attorneys are not available to help individuals navigate the legal system . Very few injured parties have the financial resources to hire an attorney at an hourly rate . With medical expenses, disability, pain
1 Adjunct Professor of Law & Executive Director, Center for Justice & Democracy at New York Law School. This article is based in part on previously published studies, websites, blogs and other publications by the Center for Justice & Democracy and by author Joanne Doroshow, writing for the Center for Justice & Democracy and the Center for Study of Responsive Law.
2 Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 minn. l. reV. 639, 653–54 (1973).
3 For example, on March 22, 1765, England passed the Stamp Act, which placed stamp duties on all legal documents, newspapers, pamphlets, college degrees and other documents. “The British reasoned that since the American colonists had been the chief beneficiaries of the expulsion of the French” after the 1754-63 French and Indian War, “they should bear the financial responsibility for the government and defense of the American continent.”The Act aroused strong opposition, in large part because the admiralty courts, which operated without juries, were given jurisdiction to enforce the Act. american bar foundaTion, sources of our liberTies 262–263 (Richard L. Perry & John C. Cooper eds., 1959).
4 See generally Wolfram, supra note 2.
5 The Seventh Amendment states, “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the united States, than according to the rules of the common law.” u.S. consT. amend. VII. See generally Wolfram, supra note 2.
Specific Areas for Reform: Tort Liability