Editorial

Bringing Justice to Big Business

Knowing that undermining the U.S. civil justice system — which affords victims of corporate and other wrongdoing an opportunity to sue perpetrators — is among the top priorities of Big Business may be reason enough to oppose the effort.

But given the massive propaganda campaign directed against the civil justice system — as myths, deceptions and outright lies are touted about out-of-control juries, unreasonable verdicts bankrupting small business or driving doctors out of the profession, and litigation-driven rising healthcare costs — it is important to reiterate why the civil justice system is so important to U.S. democracy and the public’s health and safety.

The first and most direct function of the civil justice system is to give victims the right to obtain some redress for the injuries they suffer due to corporate, doctor or other negligence or intentional wrongdoing. It affords victims the guarantee of individualized justice and imposes a basic level of accountability on those with the power to inflict harm. Do wrong to someone, and you must pay for the damage you cause.

The social value of the civil justice system reaches far beyond the provision of individual justice, however — which is why corporations despise it. It is a non-regulatory, self-generating system, not easily open to cooptation, that establishes rules for appropriate conduct, forces corporations to internalize the costs of the harms they cause, punishes those who behave egregiously, and drives other systems to restrain corporate power.

Any person injured by a corporation’s product, pollution or actions may file a suit against the company. They do not have to wait for a regulator to act.

Under the contingency fee system, plaintiffs can find lawyers who do not demand up-front payment. The lawyers face the risk of no recovery, in exchange for payment if the case succeeds. Thus the victims do not need to have deep pockets to file a case.

Victims have a right to demand their case be heard by a jury of their peers. Corporate defendants can bring in expert witnesses, but they ultimately have to convince a group of regular people, a cross-section of society, that what they did was OK. Lobbyists can’t help them, nor will writing large campaign contribution checks.

In the course of preparing for trial, plaintiffs may employ the discovery process, which gives them the power to demand internal documents and other information from the defendants. In corporate abuse after corporate abuse, the discovery process has played a key role in showing what corporations knew, and when they knew it. The information then drives public opinion, gives insight to regulators, and pushes the regulators to act.

When plaintiffs prevail, and corporations are forced to pay for the harm they caused, they are forced to internalize the costs of their actions. This works directly contrary to one of the overriding principles of the profit-seeking corporation, which is to foist the costs of their actions on to someone else.

Finally, in cases of serious and knowing wrongdoing, juries may impose punitive damages on corporations. Punitives can change the cost-benefit analysis of corporate decision-makers, so that harms that seemed cost-effective no longer seem in the company’s bottom-line interest.

The U.S. civil justice system is not perfect. Even before the so-called “tort reform” movement to undermine it gained steam, the civil justice system imposed far too many burdens on victims. But in anÅ era when countervailing institutions to corporate power are crumbling or decrepit, the civil justice system remains among the most vibrant, and among the most important to defend.