Tuesday, November 20, 2001

In preparing for this article, I was unable to find any internet hits for the phrase "Delaware tort reform". I guess that's because there isn't any. The Pennsylvania Civil Justice Coalition states that every state except Delaware, Pennsylvania, Massachusetts, Arkansas, and West Virginia have taken some action in the furtherance of tort reform. Is that because our civil justice system in Delaware is running perfectly? For whom?

Our court system is not working smoothly, it is swamped. And like many swamps, there are murky waters and reptiles. The courts do the best that they can to process the cases before them in a proper manner, but they are continually understaffed. This is the murky waters. Where is the effort to keep frivolous cases from getting into the system in the first place? Where is the effort to give parties incentives to settle in a timely fashion?

All of the taxpayers of the State of Delaware pay for this inefficient process. We pay in dollars and we pay by having a slow and overburdened process for our legitimate grievances. I ask myself then, if we are paying, who is cashing in on the current state of affairs? Someone politically powerful must be benefitting, or we would surely have done something to fix the problems. Right?

The following suggested partial cure to this ailment might help you to identify the reptiles. If Delaware instituted a “loser-pay” law, allowing judges to make some law-suit losers pay the legal fees of the prevailing party on clear cut cases, there would be an economic incentive to:

avoid filing frivolous cases;

honor our contracts and obligations; and,

to settle cases reasonably before the legal fees have a chance to get too high. (Yes, here is a lawyer arguing for lower attorney fees)

This would relieve some of the pressure on our legal system and on us. Delaware is a business oriented State. We give businesses, including insurance companies, guidance and suggestions by structuring financial costs for activities that we find harmful to the public. When we have a system that allows unscrupulous contractors to bilk honest citizens of thousands of dollars without a penalty, or one that permits insurance companies to make more money by investing settlement funds while they delay litigation, we have a system that gives an economic incentive to snarl up the system and rip off our citizenry.

Let’s work to reverse that incentive by making it financially advantageous to stay out of court. Contact your state legislators to discuss these ideas.

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