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Speaker's Resource: 9. Mississippi, p2

 

 

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Key Reference Citations (KRC)

 

Chapter 9:

Legal Reform in Mississippi

 

 

Instituting Reforms to Conform to
the Law of Common Sense

  • A third key to success is that the legislation contains provisions that conform to the law of common sense.  This gave the overall legislative package credibility, not only among members of the legislature but the public at large.  (KRC: WTTW, Instituting Reforms to Conform the Law to Common Sense, page 10)

  • Whenever the law is disconnected from general perceptions of fairness, common sense, and justice, the law and the judicial system suffer.  The flip side of this truth is that legislation that reconnects the law with general perceptions of fairness, common sense, and justice is much easier to justify and sell.  (KRC: WTTW, Instituting Reforms to Conform the Law to Common Sense, page 10)

  • As an example, the 2004 law contains a provision that eliminates all vestiges of joint and several liability and implements pure several liability.  In simple English, a defendant is responsible for paying only that portion of damages that the jury finds he caused.  Conversely, a defendant is not required to pay for any damages for which he did not cause.  (KRC: WTTW, Instituting Reforms to Conform the Law to Common Sense, page 10)

  • A major key to success was being able to point to this provision (i.e. pure several liability) as a reason for why change was necessary.  The public, and non-lawyer legislators, could understand and support this change because it seemed fundamentally fair.  (KRC: WTTW, Instituting Reforms to Conform the Law to Common Sense, page 10)

  • Conversely, opponents of tort reform would often find themselves tied in knots when attention was focused on this particular issue because they could not give a convincing answer as to why someone should have to pay for something they did not cause.  Yet, the tort reform opponents fought this issue as they did all the other issues.  The result was that opponents lost not only on this issue, but they lost credibility in general on other issues because their arguments with regard to allocation of fault was contrary to widespread perceptions of fairness, common sense and justice.  (KRC: WTTW, Instituting Reforms to Conform the Law of Common Sense, page 11)

  • To win on this argument, the issue was intentionally simplified and expressed in examples that ordinary people could understand.  Also, the term “innocent seller” was coined.  Why should a drug store be liable in tort for selling a FDA-approved drug?  Why should a car dealership be liable in tort for merely taking and selling a car with a defective gas tank when the manufacturer designed and manufactured the car and the gas tank, and the car dealership had no knowledge of the defect?  (KRC: WTTW, Instituting Reforms to Conform the Law of Common Sense, page 11)

  • The opponents of tort reform could not answer these questions honestly because the real reason they opposed the innocent seller provision had nothing to do with right or wrong.  Instead, their opposition was really based on wanted an in-state defendant to destroy diversity jurisdiction in federal court.  (KRC: WTTW, Instituting Reforms to Conform the Law of Common Sense, page 11)

  • In summary, a major key to success in Mississippi in 2004 and the tort reform fight is the fact that the bill contained a few key provisions that were substantively sound, but also could be used as examples of how the current law was out of touch with common sense.  (KRC: WTTW, Instituting Reforms to Conform the Law of Common Sense, page 12)

Do Not Take Anything to the Podium that Cannot Be
Justified on the Merits

  • In a related sense, another key to success in Mississippi in 2004 is that all of the provisions contained in the tort reform measure that were taken to the floor were provisions that were based on solid substantive justifications.  As Chairman of the Senate Committee handling the bill, I personally refused to include in the bill provisions that were logically inconsistent, that were obviously designed to curry favor with a particular interest group but that had no other independent justification, or which could not be justified by any argument other than “we need something bargaining chips.”  (KRC: WTTW, Do Not Take Anything To The Podium That Cannot Be Justified On The Merits, page 13)

  • Unlike the opponents of tort reform who fought for provisions that violated the rule of common sense, we avoided the inclusion of a provision that was likely to become a “poster child” issue that could be used to reduce our credibility on the concept of the need for tort reform in general.  (KRC: WTTW, Do Not Take Anything To The Podium That Cannot Be Justified On The Merits, page 13)

  • Maintaining this position was not always easy.  It often required saying “no” to powerful interests and valuable allies.  But, it was the right approach, both on the merits and politically.  (KRC: WTTW, Do Not Take Anything To The Podium That Cannot Be Justified ON The Merits, page 13)

  • Most importantly, it avoided a general loss of credibility as to the soundness of the bill and our motivation.  In the long run, it was a major reason we won.  (KRC: WTTW, Do Not Take Anything To The Podium That Cannot Be Justified On The Merits, page 14)

Communicating in Plain Language

  • Yet another key to success was crafting a message and communicating the message in plain English so that it could be easily understood.  (KRC: WTTW, Communicating in Plain Language, page 14)

  • One of the favorite tactics of tort reform opponents was to confuse the issue in public debate by using legalese to justify the status quo.  The best way to set the record straight was to use simple language over and over again.  As common sense as this fact seems, it was crucial in winning the minds of non-lawyer legislators and the public.  (KRC: WTTW, Communicating in Plain Language, page 14)

  • In a related sense, the election of 2003 made a tremendous difference because the election of a new Governor who supported tort reform dramatically tilted the balance of power in the legislative process.  In Mississippi, the Lt. Governor, who presides over the Senate, and the Speaker of the House, who presides over the House, have the power, through the legislative rules and the power to make committee appointments, to control the agenda of their respective bodies.  (KRC: WTTW, Elections Matter, page 15)

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Please Note:  The material presented in this Speaker's Resource has been collected from a wide variety of sources.  You are welcome to use this material for quotations and factual material in your speeches, presentations and articles.  To the best of our ability, we have provided original citations so that you can document the comments you use.  If you become aware that any of the citations or facts presented in this collection are inaccurate or outdated by newer information, please send an email to Speakers@lawexec.com to tell us so that we can update this material.  The materials cited are generally copyrighted by the original author and when you quote from their material, you should include the original attribution to acknowledge their role as authors.  Original material © 2005 American Justice Partnership.