The New Hampshire Association for Justice is a statewide professional association of trial attorneys working to protect constitutional rights and ensure people have a fair chance to receive justice through the legal system when they have been harmed by the acts of others.
So-called “tort reform”
Here in New Hampshire, our citizens typically believe in less government. But, tort reform contains arbitrary, government-mandated limits on individual rights and limits on the efficacy of our judicial system.
- We hear a lot of talk about local control. Yet, tort reform takes power and control away from local citizens. There is no smaller, more committed, or more effective form of government than a jury of 12 unbiased citizens, listening to the specific facts of a case and working to do what’s right. Politicians mandating limits on what our local jurors can do is “big government” at its worst.
- The average citizen believes in personal responsibility, holding accountable those who do wrong. Yet, tort reform puts arbitrary limits on whether and to what extent a wrongdoer can be held personally accountable.
- Some believe people should solve their own problems rather than have “big government” get involved to “bail out” one side or the other. Our justice system allows people to resolve their disputes fairly and even-handedly. Undermining that court system through so-called tort reform prevents justice and will cause the public to demand greater governmental regulation of our conduct.
- Those who are responsible for something should pay for it. We teach our children, “If you break it, you fix it.” But, tort reform tells wrongdoers you are only going to have to fix part of the harm you caused, leaving taxpayers to pick up the tab for the rest of the harm.
- We are all governed by a document called the Constitution. Yet, tort reform limits the Constitutional Right to Trial by Jury found in the 7th Amendment to the US Constitution and in the NH Constitution.
Special Interest Immunities that Undermine Fairness and Accountability
Immunity is the equivalent of “special dispensation” or a permanent “stay out of court” card for wrongdoers. It gives them the power to act negligently without regard to public safety or health, with no fear of accountability. The growing push for immunity via legislation represents a major threat to our system of civil justice and any concept of accountability.
Immunity undermines the judicial branch as one of our Constitution’s three, separated powers. As Thomas Jefferson once said, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principals of its constitution.” ‘Immunity’ slams shut the courthouse door. While a judge or jury determine the relative merits of lawsuits, immunity means no judge or jury can make a ruling on whether a case has merit and should move forward. Moreover, no jury could decide on the facts of the case. The case would be abruptly and entirely closed to any legal action for all time.
Creation of statutory immunity is the single most draconian step the Legislature can take to address a liability issue. Only important public policy considerations should justify a grant of immunity, because immunity shields negligent conduct. Because of this, we believe immunity ought to be reserved for very extraordinary circumstances. But powerful interests, seeking special privileges that do not hold them accountable for their actions, now almost routinely seek legal immunity for their actions.
- With immunity, facts don’t matter. Immunity ignores the facts or the circumstances of improper or unsafe behavior, whether by a person or a corporation. Immunity provides blanket protection from any civil action no matter how egregious the conduct – often hurting the ‘little guy’.
- Undemonstrated need. Pleas for the status of legal immunity blanketing whole industries or categories of government activity are increasing. Yet without even bothering to demonstrate a specific and urgent need, these lobbies are simply trying to ride the bandwagon of myths and phony anecdotes now being used against the civil justice system. But mere rhetoric without any reinforcing data and substantiating arguments should not be the basis for radically weakening our legal system.
- Discouraging the search for safer practices. Immunity removes a key incentive for research and development of methods and products that better protect the public’s safety and health.
- A license for corporate and personal irresponsibility. A legislative imposition of legal immunity for individuals or corporations provides them with permanent protection against accountability to the public. This fundamentally clashes with our widely shared values of individual responsibility, and good corporate citizenship.
- Victims’ rights vanish. Our society has increasingly come to understand the importance of recognizing victims’ rights and the lasting impact victims may suffer as a result of wrongdoing and carelessness. Yet immunity shockingly gives wrongdoers a free pass from defending their case in court, while victims have no legal recourse at all. This shifts the burden from wrongdoers to the innocent injured party. Wrongdoers are immunized yet there is no way to immunize the victims from the harm they suffered.