You Can Have Your Tort Reform and Eat it Too

I can’t believe it! I just solved the problem that proponents of "tort reform" have been trying to solve for years. I did it this morning on my little word processor. It doesn’t require any change in the law and it will make all sides ecstatic because it gives everyone what they want. And I can explain it in less time than a long breath hold.

The problem, according to the self-styled tort reformers, is that personal injury settlements and jury verdicts are too high. They say this is causing a drag on the economy due to high insurance costs and the stifling of product innovation. They point to many other countries with fewer lawyers, lawsuits, and much less generous awards. What I cannot figure out is why most of the tort reformers invest their money in American companies and avoid investing in countries with stingy tort litigation policies.

Damages for "pain and suffering" constitute the vast bulk of personal injury awards. Out of pocket loss is chump change. The reformers therefore propose eliminating or reducing damages for pain and suffering. The only problem is, some of us don’t agree with any of this. We believe we have a due process right to be compensated when someone deprives us of life and liberty, including by causing physical injury. Also, being followers of the Austrian school of economics, we are rather partial to subjective kinds of damages. Economic value is subjective after all, not monetary.

Imagine that one of these tort reformers runs into me with his car while I am walking on the sidewalk, and as a result I lose my right arm. The tort reformer says, "Here’s a hundred bucks for bandages." I reply, "What about my right arm?" He says, "No damages for pain and suffering, just out of pocket. And you’re a lawyer, you don’t need your right arm, just your left brain." I slap him in the face as hard I can with my left hand and say, "Sue me for your out of pocket."

The tort reformers think damages for pain and suffering are unjust, illusory, fraudulent, and harmful to the economy. The anti-tort reformers disagree. There is a solution, however. We can all just get along. We are told that more than half of all Americans favor legislative tort reform. They don’t have to wait for legislation, however. They can act unilaterally to drastically reduce litigation costs. I propose that every supporter of tort reform sign a document that states:

"I, Joe T. Reformer, being of sound mind and incapable of suffering or feeling pain, do hereby waive and relinquish forever, any right, claim, or benefit, to monetary damages for pain and suffering of any kind, arising out of a personal injury done to me, and I hereby release any future tortfeasor from such liability, and I consent that this document may be introduced into evidence at any court proceeding brought by me against any tortfeasor. This release applies to personal injury actions of any kind, including but limited to negligence, intentional torts (e.g., rape, assault, battery, live burial), medical malpractice, civil rights, constitutional torts, and defamation."

Tort reformers, being persons of great integrity, can be expected to sign these documents quickly and en masse. The documents can then be made available in an Internet database with the originals filed at the local county clerk’s office. With half of the people in the country waiving their right to such damages, we would cut the costs of jury verdicts and settlements in half immediately! Those who sign would also get an immediate benefit in lower insurance rates. Those who do not sign could still sue for the full measure of damages, as is their right. And we needn’t worry that the tort reformers would renege and claim they didn’t know what they were signing. That would involve such an unforgettable public display of confessed stupidity and unconfessed hypocrisy that the ex-tort reformer who does so would literally die of shame if he ever left his house.

So there you have it. You can breathe again. To get this thing started right, I suggest that our leading advocates of tort reform sign first in a very public ceremony. I will officiate, as I am a notary public with seal. Gentlemen and Ladies, you know who you are, call me!

One more thing. DO NOT put a bumper sticker on your car that says: "I WAIVE DAMAGES FOR PAIN AND SUFFERING."

April 7, 2001

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at