In response to tort reform efforts to put restrictive caps on the amount that those suing can recover for their injuries, some lawyers have invoked access to justice articles to invalidate these caps as incompatible with their state's constitution.

For example, the right of access to the courts has been successfully used in litigation to invalidate restrictive anti-civil justice legislation in Arizona (1986), Florida (1987), Kentucky (1998), Louisiana (1999), New Hampshire (1999), Texas (1988).

The same is true with the right to trial by jury provisions of state constitutions. All states (except Colorado and Louisiana) have the right to jury in their constitution (indeed - you should know that the federal right to trial by jury does not extend to oblige the states as do the other rights under the Bill of Rights - and so you absolutely must rely on these state constitutions for your right to trial by jury).

The state constitutional right to a jury trial has been successfully used to strike down anti-civil justice legislation in Alabama (1991), Kentucky (1998), Ohio (1999), Oregon (1999), Washington (1989).

In the public policy back-and-fourth between the different camps of the debate around the civil justice system, it is easy to lose sight of the fact that you have an explicit right  to access this system based on often overlooked state constitutional provisions.

Maybe the trial bar (plaintiff attorneys) is right about the pubic policy implications of the civil justice system, maybe the defense bar (corporate defense attorneys) is right about some things about the civil justice system - but it doesn't really matter. You have a right to access the courts, period point blank (well -  unless you live in one of the few states without one).

Often in the national debate about tort reform (or as some see it tort deform)  it is easy to lose sight of what the "tort reform" movement really is trying to do. Spotlighted in this post is the current litigation in Ohio. In Ohio, an anti-civil justice law was passed which limited non-economic damages in a lawsuit to $350,000 and capped punitive damages to twice compensatory damages. Right - so what does that even mean?

The Non-Economic Damages Cap: What it means is that regardless of how horribly you are harmed (outside of the medical malpractice context), by whatever level of recklessness on the part of the person or company which harmed you, all that you can get for your emotional suffering is $350,000. This amount will include compensation for the fear, humiliation, and even twenty or thirty years of suffering and social ostrazation if you are, for example, a burn victim. It also includes compensation for anything with no hard economic price tag , such as loss of a limb, disfigurement, loss or reproductive capacity, etc. That compensation may amount to a little under $12,000 bucks a year if you live thirty years after your burn injury. Aside from payment for your medical expenses, and your lost earnings, this will be all that you get, regardless of how badly you are injured. Put differently, in this example, $12,000 is the only "profit" that you make from your injury/affliction. Put differently still, $12,000 is what you get for what can be termed the emotional trouble and inconvenience of having been harmed.

The Punitive Damages Cap: Punitive damages are imposed in order to punish especially egregious conduct on the part of the source of the misconduct. For example, these types of damages would be imposed against a corporation if it knowingly, flagrantly, and/or intentionally endangered somebody with its product. There are federal constitutional guidelines to the proportionality of punitive damages vis a vi compensatory damages that can be imposed, the Supreme Court has never imposed a hard proportionality limit.

As discussed in a prominent law review by one the attorneys fighting against the reform, these types of caps also fall disproportionately on women and people of color.

Because women and people of color usually make less money, they will usually receive smaller payments for their lost income. Indeed, the primary manner in which these groups are compensated for their injuries is through their awards for pain and suffering and other non-economic damages (Robert Peck p. 337-441).

Moreover, people of color routinely receive lower quality medical care and are served in hospitals with higher rates of adverse events and more errors (Harvard Med Prac. Study, Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York).

Not only are caps often violations of your state constitutional right to trial by jury, or to access the courts, they almost always have a discriminatory impact based on sex or minority status.

Next time your state legislature is considering capping damage awards - give it some thought - especially if you are not a rich white man.

To see articles further discussing these rights in the context of the Ohio litigation click here and/or here.

If you or your organization is interested in learning more about or working on these types of civil justice issues, please feel free to contact me at cdugger@drummajorinstitute.org.

Cyrus Dugger
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy