Rex Anderson, PC

It has now been 14 years since Michigan Governor John Engler spearheaded Tort Reform in the State of Michigan. This was touted by the Neo – Cons as necessary for the economic survival and flourishing of Michigan’s economy. A national smear campaign had been simmering against the “cry baby” plaintiffs and their greedy “trial lawyers,” since the 1980s. I remember as a teenager seeing this headlining on the front page of “TIME” magazine. The chamber of commerce funded much of this propaganda. Corporate America did not like being held responsible for the manufacture of dangerous products and insurance companies hated paying out on claims whether they were legitimate of not. All blame for the socio and economic ills of our society was dropped at the feet of the “trial lawyers.”

Well after 14 years of Tort Reform, we can now truly appreciate how utterly full of baloney those crooked public officials were. They were bought and paid for by big moneyed interests and stripped the rights of the little man away to pocket even greater profits. Consumer rights were stripped away by a corrupt Supreme Court majority. The rights of the injured were stripped away to the benefit of insurance companies who lost their profits in the recent stock market crash. Laws regulating the Mortgage industry became non-existent while brokers built mansions on Lake Charlevoix at the expense of a banking crisis.

George W Bush, like John Engler used his position of influence to deride the trial lawyers in every State of the Union address he made. It is safe to say Tort Reform was a boogey man and the proof is in the pudding. Hog-tying trial lawyers from representing consumers and injured people had no effect on the economy. To the contrary, creating laws to put more money in the pockets of a chosen few has been the downfall of this State and nation in large part.

Admittedly, Lawyers are an easy target. The profession is full of dispute and controversy and it is not difficult to find someone or another who has had a bad experience with a lawyer. There is no mistaking that many legal cases are a war of attrition and justice prevails to the deepest pocket.

Certainly there were cases of plaintiffs and their lawyers abusing the system. However, this was not as wide spread as the insurance industry, their lobbyists, and even some in congress would have you believe. Consider the source. Those complaining about the Plaintiff’s bar and the need for Tort Reform were those who also stood the most to lose. This is akin to the fox guarding the hen house. King Henry VIII said “first let’s get rid of all the lawyers.” So did Stalin. So did Hitler.

Lawyers have the knowledge to prevent tyranny or at least slow it down by using the legal system. Trial Lawyers are the last line of defense before the powerful steamroll over the weak.

It is sad that those with the most resources can so convincingly frame reality for the rest of us to the point where we actually start to believe those funny cute commercials, which portray the insurance industry as the victims when in reality some of their CEOs are making hundreds of Millions of Dollars – denying legitimate claims.

For more than 20 years, big business lobbyists have promised that if we give them just one more special immunity or additional get-out-of-jail-free card, they will make so much money we will all be better off. Sadly, our lawmakers have listened and believed. And we let them.

This is especially apparent if you realize that Michigan is one of the most "tort reformed" states in America.

• Forbes.com ranks Michigan's tort system third best out of 50 in American in their Best for Business ratings. Last year we were second.
• Crain's Detroit Business noted that the rabidly pro-business American Justice Partnership has declared "Michigan's liability climate is conducive to growth and jobs creation." AJP ranks us seventh out of 50 states in the category of "litigation climate." Since Michigan's tort reform godfather, former Gov. John Engler, is the head of AJP, that ranking is especially noteworthy. AJP says we have lots of tort reform. Yet we don't have any job growth.
• Since the creation of our unique absolute "drug industry immunity law," Michigan's once booming pharmaceutical industry has all but fled the state. Pfizer took 2,700 jobs out of Michigan and moved them to states without our liability immunity law.

Tort reform was sold to us circus-style as a magic elixir, with promises of huge savings, jobs thick on the ground, and hyperactive economic growth. Instead, we have a hobbled justice system that functions as a puppet for special interests resulting in tens of thousands of injured, wronged, cheated people who have no way to hold wrongdoers accountable. Hundreds of millions of dollars in costs have been dumped on our taxpayers instead of being paid by those who are responsible for screwing up, and the economy is behaving exactly as if the snake oil of tort reform were poison.

It is time to stop listening to the Chamber of Commerce's recycled ads for the patent medicine that got us into this mess. It is time to listen to some smarter, saner, less self-interested voices:

"I consider (trial by jury) as the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution."-- Thomas Jefferson

"Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds."-- John Adams

It is time to be honest about the failed doctrine of tort reform. Fortunately, there is a silver lining in Michigan’s stormy future. In November 1998, Diane Hathaway sprung a stunning upset of Clifford Taylor (the sleeping judge), the conservative chief justice of the Michigan Supreme Court. Clifford Taylor as chief justice led the way for the Michigan Supreme Court as being one of the worst in the history of our state. The University of Chicago Law school study placed Michigan at the bottom of the barrel:

“as [far as] judicial independence from political or outside influences, its numbers of published opinions, and how often the court's decisions are referenced in rulings by other courts.” See the full text of this study at: http://www.publicnewsservice.org/index.php?/content/article/5394-1

Rex Anderson

Credit for portions of this article is given to:
ROBERT M. RAITT, of the Southfield law firm Gursten, Koltonow, Gursten, Christensen & Raitt, PC, former president of the Michigan Association for Justice, formerly the Michigan Trial Lawyers Association.