Kicking Hardworking Tennesseans When They’re Down, Part 3 – The Loser Pays Edition

February 20, 2012 by  
Filed under Civil Justice, Recent Blog Posts

The biggest losers are the working people of Tennessee.

After reading this story in the Tennessean this morning we have to state once again, when will Governor Bill Haslam and Republican lawmakers ask, “Is this legislation good for the hardworking people of Tennessee” before they ask, “Is this legislation good for large corporations and their CEOs?”

The article’s title and sub-title: “More TN tort reform may make the ‘loser pay'” and “Group follows landmark law with plan to weed out frivolous lawsuits” is painful enough since it establishes as givens the memes that our civil justice system is broken (tort “reform”) and that Tennessee has a problem with lawsuits run amok. Neither is true.

But then malicious fallout from the new law – also known as The American Rule –  is explained:

One bill would require a party who loses a motion to dismiss to pay the litigation costs of the opposing party…

Lebanon trial attorney Keith Williams argued that, in practice, the laws will favor deep-pocketed corporations and insurance companies that can afford the risk.

Daniel Clayton, a medical malpractice lawyer in Nashville, said working-class Tennesseans and small businesses, on the other hand, might be too scared to file a lawsuit that has merit because the outcome of litigation is uncertain and they could get stuck paying the litigation fees of a company with an army of lawyers.

“If loser pays passes, it gives incredible power to insurance companies and big business because they can intimidate people and bankrupt people to make it very difficult for a family or small business to hold a corporation or insurance company accountable for wrongdoing,” Clayton said. “It would be the equivalent of the New England Patriots having to pay all the expenses of the New York Giants because they lost the Super Bowl. No one would claim that the New England Patriots shouldn’t have played in the Super Bowl.

“What we are dealing with is much more serious than a football game because it’s lives that have been catastrophically injured.”

And then there’s this kicker:

“Another proposal, which has not been formally presented but is being discussed at the statehouse, would see a constitutional amendment placed on the 2014 ballot. If approved, it would protect the Civil Justice Act from being overturned by the courts by amending the state constitution to specifically allow the General Assembly to cap damages in civil lawsuits.”

If you’re keeping score at home – Republican lawmakers are:

  1. Dismantling labor practices that protect hardworking Tennesseans;
  2. Taking away the right to vote of hardworking Tennesseans; and
  3. Trying to take away the right hardworking Tennesseans have to a government that works as it has for centuries – with a system of checks and balances so that no one branch of government has too much power.
And it’s only Monday.
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