California Tort Climate Often Stacked Against Injury Victims

Scales of Justice Statue as female lawyer advocates against Tort Reform
A successful lawyer in the office of justice figure in the foreground.

As odd as it sounds, one of the most progressive/liberal states in the union goes really hard on personal injury victims. Strange as it sounds, with a personal injury Plaintiff’s Bar that is beholden to the California Democratic party, the people we represent as plaintiffs, often have less rights in their damages recovery claims for example, than other more so called “conservative” states.


Interference With Plaintiff’s Rights Is An Ongoing Battle – The Motive

Traditionally, Republican politicians, despite their universal view that we need less government, like to make hay against injury victims every election season. Their answer is to dis-empower the Plaintiff’s Bar, by any legislative means necessary.  After all, what personal injury attorney is not a member of the Democratic juggernaut?

There’s always talk about “tort reform” without the prerequisite exploration of the current legal climate, even in some democratic districts. Just like un-negotiated wage increases, empty slogans and electioneering usually lead to either no action at all or distorted actions meant to satisfy populist urges that ultimately hurt everyone, further ruining our economy.

Lawyers Will Survive and Thrive – But Not Victims

Either way, the losers in “tort reform” are commonly those that have been hurt in car or work accidents when they are in the most dire need.  Plaintiff’s lawyers can always find some new cottage industry, as they had to do once Medical Malpractice laws signed into law by Democrat, Governor Jerry Brown, were enacted. Of course, with no provision for the future adjustment for costs of living, or for inflation, for example, the damages limitations in that legislation have made it virtually impossible for many victims of professional medical doctor malpractice to receive any type of compensation.

Lawyers Also Have to Run a Business

Many attorneys make poignant points about the dignity of such victims and their need to seek justice. Do they make these statements for a good reason besides trying to get paid a fee? Are these things being said in jest by an ambulance chaser, or are lawyers really out there trying to make it happen for the little guy? There are negative stereotypes about those in the legal field, further compounding issues facing the injured, looking for a positive resolution.

The truth of the matter is that good intentions do not pay your lease for your law office, your weekly pay to your secretaries, associates, utility bills, vehicle lease, phones and so on. This is not L.A. Law. Us lawyers are not always in court arguing a case. Like the military, each legal warrior needs strategical logistics, in order to win your legal battle tactically.

When damages and other restrictions are imposed that take away jury rights, plaintiffs are hurt, as it becomes no longer feasible to take on a case where the costs of experts, getting records, taking depositions, and so on and so forth, outweighs the potential damages recovery that is now limited by statute, or “shackled” if you prefer. In the end, the victim gets victimized twice. First by the tortfeasor, and next by his or her own state.

Special Interests – The Enemy of My Enemy is My Friend

The “enemy of my enemy is my friend” is the way it has worked since time immemorial. The sad truth is that many Plaintiff’s lawyers do not buy into the Democrat party and big government either. But at the end of the day, the Plaintiff’s Bar is going to do what it has to in order to keep the fees coming in for and from its members, irrespective of the rejection by many of its members, of much of the platform of the modern party.

At the end of the day, a “classic liberal,” gun owning lawyer is faced between defunding his clients and voting Republican, or voting democrat and being forced to be at the mercy of criminals who ignore gun laws.  At the end of the day, no one is going to vote to take away their own livelihood. One can always retire in a free state and shoot to his hearts delight as they say. Money makes strange bedfellows as they say.

In the Meantime – Good Luck Suing the Government

Believe it or not, many levers of California’s legal system are instead stacked against those that need money to cover their medical bills and pain and suffering the most. California’s Government Code Section 815-818.9 severely and confusingly restricts the rights of the aggrieved to seek justice versus government agencies or employees. The downside to empowering the state, is that public servants then use that power to insulate and empower themselves, as well as the apparatus that pays them “no matter what.”

Furthermore, artificial restrictions severely limit the ability of such injury victims to be adequately compensated for their injuries. Harvard’s law blog wrote on the subject recently, noting the $250,000 limit for non-economic damages, calling the cap “arbitrary and unconscionable.” The state’s cap has done more to limit the ability to challenge medical malpractice than most other factors.


Follow the Money

The ability for insurance company bean counters to know that victims’ pain can be limited allow for greater profits and less accountability when push comes to shove. 2014’s defeat of Prop 48 highlighted the larger trend toward special interests. Modest attempts to keep professionals’ activities public and have the tort cap keep up with inflation after almost forty years went down hard in November.

The amount of special interest money that came in to deceive the public was staggering. Misinformation flooded the airwaves and implied that attempts to create justice for injury victims was instead an assault on the public. The effort to pass Proposition 48 was outweighed in spending almost 5-1.


Get Involved

It’s a long road ahead for advocates of those in need of legal guidance. The system has been weighted in many ways against injury victims for decades now and will likely continue for the foreseeable future. Only sustained effort on behalf of the public can help change what has become a national highlight of injustice.

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