Tort Reform Blitz - How Will it Impact Our Cases
Edward R. Kennett, Esquire

It is impossible to avoid the onslaught regarding the need for tort reform. Business groups, health care professionals, and insurance lobbyists have bombarded the media with endless horror stories of runaway juries and frivolous lawsuits. Despite the recent changes to medical malpractice law (The Medical Care Liability and Reduction of Error Act), the severe curtailment of joint and several liability, and venue rule changes, tort reformers are clamoring for more. Attacking trial lawyers has become even more popular. Tort reformers repeat popular sound bites about how lawsuits and lawyers are destroying this nation. And jury pools, which were already packed with people prejudiced against plaintiffs, have been tainted by the blitz.

Our experience, which has been confirmed by conversations with other attorneys, is that the recent impugning of lawyers and plaintiffs has emboldened defendants and insurers. More and more cases are going to trial, with hope that the current climate will encourage a defense verdict. Defendants are taking a far more stringent stand regarding settlement, and cases which settle tend to settle for less than they would have absent the current atmosphere. So how do we maximize the value of our client’s claim?

While it is impossible to anticipate the nuances of how the new legislation will play out, two truths remain: (1) new laws are fertile ground for first rate advocacy; and (2) as John Adams told juries, “facts are stubborn things.” Maximizing a client’s recovery requires a detailed understanding of the new laws and an exhaustive pursuit of facts. No matter how tainted the juror is before walking into a courtroom, an effective presentation of the applicable laws and the facts can melt juror skepticism. An effective presentation, however, requires tedious attention to detail and a willingness to invest significant time, money, and expertise. Gathering the facts is not sufficient. We all know of cases which have been lost or undervalued due to a lawyer failing to appreciate the importance of certain facts. An effective presentation requires understanding the nuances of the law and the facts and using them to slowly, piece by piece, build the validity of the case. Trial lawyers must fulfill the duty to obtain, organize and present the facts of the case persuasively. Cases are won or lost, or a settlement is maximized, by fulfilling that responsibility.
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