Don’t Blame Sony – Blame Obama and the Tort System

Posted: Dec 22, 2014 12:01 AM

It's shameful that a company like Sony would go groveling to a deceitful, tyrannical, un-American thug, but this column is not about Sony’s sucking up to Al Sharpton. This column is about a tort system that is dedicated not to justice but to making lawyers richer, and it comes not only at the price of American prosperity but at the cost of our liberty as well.

Certainly, Sony has a yellow streak as wide as Seth Rogen’s gut. Its creepy supplication to that race-hustling, MSNBC troll shows its true cowardly character, since Sharpton – unlike North Korea – doesn’t have a track record of kidnapping and murdering people. Cavorting with those who fake kidnappings and real and potential murderers, sure, but not doing them himself.

So Sony, even if it wasn’t inclined toward submissiveness, had no choice but to cave-in to the Norks and pull The Interview. We have created a tort system that gave it no other choice.

If some pack of scumbags walked into a movie theater showing The Interview and opened fire, Sony and the theater companies would get sued. There’s no question about that – the Aurora theater chain where that psycho decided to start shooting is getting sued by the victims’ heirs as we speak. And, under our ridiculous tort system, the theater will lose, whether it prevails in court or not. Defense lawyers like me are not cheap.

Sony is a business; its duty isn’t to fight for our principles but to preserve and expand shareholder value. We veterans all swore to die, if necessary, to defend our Constitution, but Sony didn’t. It’s easy for us to say to Sony, “Hey, let’s you and him fight,” when it’s neither our money nor our personal safety on the line.

Society shouldn’t expect that companies that come under attack by a foreign government while exercising their right of free speech within the United States to pick up the gauntlet and go to war. We conservatives have a pretty constrained view of the proper role of the federal government, but if its portfolio includes anything it must include defending Americans who come under attack by a foreign government while exercising their right of free speech within the United States.

But Sony was at a disadvantage because they had to rely on President Obama, who seemed bothered by the fact that this arose on the day he wanted the media narrative to focus on his footsie-playing with the Caribbean hereditary communist monarchy rather than on the antics of the Asian hereditary communist monarchy. Obama, as is his tradition, did nothing, which is what America’s enemies have come to expect. Sony was therefore utterly alone.

Obama won’t even defend his loyal Hollywood fanboys and fangirls. If he won’t put down a nine iron to protect the people who write him huge checks, what do you think he’ll do to protect you?

So Sony was left entirely exposed and so it pulled The Interview. Its lawyers told them – correctly – that, under our current tort system, it was insanity not to.

America doesn't need tort reform. It needs a tort rethink, a completely new idea of how we will use the courts to redress injuries. Why? Because, and it's important that you understand this, the present tort system is designed to do one thing and one thing only – make trial lawyers rich.

A “tort” is a wrong. A tort lawsuit usually seeks the recovery of money as compensation for some tangible or intangible damage the defendant allegedly caused to the plaintiff. Personal injury claims, like from an auto accident, are torts. So are fraud claims. Sometimes – are you listening, Rolling Stone and Lena Dunham? – tort claims involve defamation.

Tort suits are not like contract claims, which typically involve a dispute between parties over an agreement that one side breached. In contract actions, you can generally only sue for the amount of the actual loss – if someone breaches a $100 contract, you can generally collect only $100. But tort claims allow for the recovery of monies beyond the hard economic loss – for example, you can often get “pain and suffering” damages, and maybe punitive damages. In other words, torts are judicial lotto.

Tort lawsuits often claim negligence, which essentially means that you can win money by convincing, in retrospect and years later within the safety of a courthouse, nine of the 12 people picked at random to sit on the jury that the defendant did not act reasonably. Do you feel comfortable with placing the fate of everything you worked for and built over the years in the hands of a bunch of strangers whose only qualification for the job is U.S. citizenship and a pulse? Well, that’s what our tort system does. Sony didn’t want to roll those dice, and why our society choses to maintain this system is beyond me.

Perhaps some people still cling to the ancient cliché that everyone deserves their day in court. No, they don’t. Most tort claims are ridiculous, and that doesn’t matter. A bad case doesn’t just get thrown out – in fact, the system is designed not to throw out bad cases. You have to litigate bad cases just like you litigate good ones – for years, and at huge expense. And even then, many defendants find it’s cheaper just to pay off these parasites rather than keep covering the huge bills defense attorneys like me have to send them month after month. It’s a racket and a scam, and we ought to drive a stake through its heart.

But as a society, we aren’t ready to do that. We imagine that courtrooms are the places where justice is done rather than where what some estimate to be 10% of our GDP is siphoned off to buy people like me vacation homes in Aspen. Some people think that money can repair grievous injuries; they don’t understand that the “pain and suffering” money juries award is basically the part of the haul that lands in the plaintiff’s lawyer’s pocket.

Others think that tort law makes society safer. Well, now we’re certainly safe from another crappy Seth Rogen movie, but is that what we really want? Go look at a hammer in Home Depo. Because of our tort system, it will probably have a sticker on it that says, “Do not hit yourself on the head with this hammer.” I feel safer already.

And some people like the idea that they might be able to cash in themselves. Yes, the American people have thrown away maybe one dollar in ten in order to preserve the opportunity to exaggerate their neck pain and get $1,200 out of a $4,000 settlement on a rear-ender soft tissue claim.

What’s the answer? Mere Band-Aids won’t help. “Well, we can outlaw lawsuits against studios and theaters in these situations!” No, because then those laws get litigated. Look at the bogus Newtown lawsuit against Bushmaster that the liberal media was just crowing about. There’s a federal law designed to bar lawsuits claiming guns are inherently dangerous. This lawsuit has zero legal merit – zero – and it may well bankrupt Bushmaster litigating what is a foregone conclusion. No, we need to burn down this village to save it.

Want a sensible tort system? Start with “loser pays,” and since most plaintiff don’t have the kind of money to repay defendants when their crummy case loses, make them put down a hefty deposit on the post-judgment attorney’s fees award before filing. Will that dissuade people from filing lawsuits? Heck yeah – but hey, if your case is so awesome, get your lawyer to write a check and deposit it with the court.

Also, end awards of damages for pain and suffering – just end them. Gone. Make tort law about tangible economic losses. And watch the majority of trial lawyers have to go get real jobs.

Sure, Sony is run by cowardly Hollywood liberals, but in this situation, its decision was not a result of its lack of a spine. It was the result of a tort system we allow to persist as well as our decision to re-elect a president more interested in putting than in protecting our people. So don’t blame Sony; blame ourselves.