Whenever powerful groups like big business start talking about "leveling the playing field" I get very nervous. "Leveling the playing field" is the catch-phrase used by the powerful to justify what is actually a grossly un-level playing field. The powerful, standing high on the playing field, attempt to convince the people that they are really at a disadvantage, i.e., on the low end of the playing field.
This is exactly what big business interests did successfully in Alabama at the end of May when they helped push through what they called "tort reform." What they said they were doing was legislating "balance." What they were actually doing was to legislate an even greater imbalance between the average Jane/Joe and large corporations.
In my opinion, anybody who thinks that the average Jane/Joe stands in a position of power higher than large corporations has simply not been paying attention to reality. The civil courts are the only place where the average citizen can take on big business and get any redress. And still, in the civil courts, the average person is at a disadvantage when taking on corporations like Prudential Life Insurance. Large corporations like Prudential have a bevy of civil trial attorneys, highly paid and specializing in protecting the company. The average citizen has to find an attorney willing to take on the case on a contingency basis. This means that the attorney has to foot the entire bill for the case and then gamble on winning. If s/he doesn't win, s/he's out a lot of money. So, even in civil court, your average person is at a disadvantage.
My colleague Steve told me a story about his father's lawsuit against one of the large automobile manufacturers. Steve's father sued the manufacturer over a model of car which was plainly defective and which resulted in the deaths of a number of people. While these cases later won in the courts, the case Steve's father brought early on, failed. Steve was around 12 at the time. It took his father until Steve graduated from law school to pay off all the debts. But these are not the stories that are spread all over the media when jury awards in tort cases are discussed.
Instead, we are assailed with stories of "excessive" jury awards, discussions of "run-away juries," "jackpot juries", "greedy" lawyers characterized as "buzzards and vultures [waiting] to feed off the carcasses." The opponents in these cases are portrayed not as average folks against big corporations, but as greedy vulture lawyers against poor oppressed businesses.
This is a smoke and mirrors game, played by people who have the money and power to put their version of reality in front of the people hoping they will believe it.
Another example of this propaganda game is the phrase "tort reform." The attempts to put caps on jury awards, especially caps on punitive damages, is called "tort reform." But the term itself implies that there is something wrong with the tort system that needs to be reformed. This is certainly not the viewpoint of everybody.
What is wrong with jury damages in the eyes of big business is that it hurts them financially. What is right in terms of juries and average people is that when big business defrauds or puts defective products on the market, these damages are the only way to compensate the plaintiff for his/her loss, and to make a statement about the unacceptableness of irresponsible and predatory behavior on the part of corporations. It is the only way to deter them from future harmful behavior.
Supporters of tort "reform" claim that civil jury awards are "excessive." Most large jury awards, however, are later reduced on appeal. And, if you compare jury awards with the profits made by the company, they are often not out of line.
Supporters of tort "reform" are in actuality claiming that punitive damage awards cannot be trusted to the rabble of a jury; that juries are not competent to assess damage and administer punishment against businesses who defraud, put defective and sometimes grossly dangerous products on the market, or cheat the public. For big business, this matter is simply too important to be left to regular people.
Big business pushed and succeeded in Alabama to limit punitive awards by juries, thus saving themselves the trouble of costly appeals to have damages decreased.
But, for those who still have faith in the jury system, a cornerstone of a democratic society, juries are seldom either crazy or foolish. When a jury smacks a corporation with big punitive damages (damages intended to deter the fraudulent or irresponsible behavior) they have in mind an amount that will actually deter. For corporations that make large profits, the awards have to be high to have any hope of deterring future dangerous behavior.
For some corporations, punitive damages are just considered as the cost of doing business. Like the professional thief who regards going to jail every five or six years a business expense, corporations sometimes figure in the cost of getting caught and fined into their estimations of whether the fraudulent or irresponsible behavior is worth it. If they break the law, get caught infrequently, and the damage awards are not that great, breaking the law is more profitable than abiding by it.
The supporters of tort "reform" in Alabama made it perfectly clear that they were acting on the behalf of business. Sen. Lowell Barron, speaking on Johnnie Cochran's television program said that juries had to be "reasonable" (less harsh on big business) and that since tort "reform" had passed, Alabama was "a good place to do business."
But, consumer protection laws in Alabama are not that strong anyway, and this tort "reform" just makes it easier for corporate America to do what it wants without taking the responsibility.