I sat transfixed by a 60 Minutes story on tort reform. You had regular working people calling for tort reform because the climate of liability was keeping businesses and doctors out of their communities. You had these same people decrying the greed of the litigants as the cause of the problem, and the capping of awards at the clear solution.

Three cheers for divide-and-conquer. Large corporations are the one's behind the push for tort reform. It is they who have the most to win.

The Problem:
There is a real concern with large liability awards, but the awards are the symptom, not the cause, of the problem.

Let's get one thing straight -- being the plaintiff against a large corporation is a real struggle emotionally, socially and financially. You're up against a significant corporate legal budget which has a mandate to not allow precedents to be set. You are dependent on your lawyers being attracted by a contingency pot at the end of a rainbow. You are attacked and maligned both in court and out. And the amount of time and effort consumed tends to break families apart.

In fact, most plaintiffs go after these cases for reasons other than money. Sure, if they win the money is a balm. However, in most cases money can not buy back what the plaintiffs have lost, be it health, a loved one, a reputation, or a career. The fact is that for the vast majority of people to suck it up and decide to take on the system, they must feel that they have been wronged fundamentally, inextricably, willfully and wantonly. It just ain't a matter of greed.

Second, most juries give mammoth awards not to enrich the plaintiff but to punish the defendant in the only meaningful way that they know how to. After sitting through the trial, the jury comes to the understanding that the corporations have no morality, no ethics, no social responsibility other than what can be measured and described monetarily.

Time after time it becomes clear that corporations engage in unethical or illegal practices because either they calculate that they can get away with it or they calculate that they can make more money than if they act responsibly and legally. The clearest modern example of this is, of course, the Pinto case. Decision-making levels at Ford knew there was a real safety design problem with the Pinto. These decision-makers made the explicit judgment that it would cost the company less to continue private settlements in the wrongful-death and wrongful-injury suits, and thereby impose a cloak of secrecy, than it would to recall the cars and fix the gas tanks.

In the end, it is indeed a matter of greed. It's also a matter of being clear who's being greedy. Time and time and time again it is the greed of the corporations which lead to these suits being filed and it is the greed of the corporations that is being punished by the significant monetary awards.

The Solution:
Limiting awards is not a solution. It only gives the corporations a wider berth. Limiting the amount the plaintiff lawyers can make only reduces the amount of effort that they will expend on any one case. Again, the wrong-doers gain a wider berth.

The real solution is to reform the legal standing of corporations. Somewhere along the line, corporations moved from being entities that existed at the behest of the polity for the benefit of the polity subject to the will of the polity and instead became the legal fiction of an independent person-in-being. Actually, corporations have become super-persons. Take the issue of speech. They have a special speech right -- commercial speech -- in addition to first amendment rights. In addition, they can squelch an individual's first amendment rights both in the workplace and when discussing financial liabilities. It's not a fair fight and it's not a free marketplace.

Is this going to happen? Of course not, especially not under the current regime that is hell-bent on eviscerating all environmental and health protections for the benefit of corporate profits and ceo bonus plans.

So what's the solution? Fight any so-called tort reform that does not explicitly and fundamentally reform corporate governance. Keep the law suits flying so that we continue create precedent against irresponsible and illegal behavior. Support the whistle-blower and don't be fooled into to turning on your fellow when that fellow is just trying to help you, too.

And if corporations don't like it, there's one thing they can do: don't do bad things. It's that simple. Police yourselves so that we don't have too.

tort  (tôrt) n. Damage, injury, or a wrongful act done willfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit can be brought.