It’s Time to Fix a Broken Judicial System

It’s Time to Fix a Broken Judicial System

© David Burton 2016

A Broken Justice System

     The American civil justice system is failing the American people in many ways. It is overburdened with lawsuits and a veritable flood of seemingly endless appeals to decisions and judgments. Trials and hearings drag on for years before they are heard and judgments rendered, and then new appeals are filed attempting to reverse or ameliorate the previous decisions. The results are: justice intolerably delayed; astronomical court costs; grossly inflated legal costs to litigants and defendants; public and commercial projects delayed for years or abandoned in frustration as costs spiral uncontrollably.

     Liability tort madness is costing Americans a fortune. Americans bring suit for pain, suffering, obesity, hot coffee and endless other reasons. The cost in legal fees, time lost, overloading our courts and insurance is incalculable. Turn on your television and watch the ads by ambulance-chasing lawyers and law firms trolling for customers hoping to get rich by joining in class-action law suits against anyone and everyone with deep pockets.

     Once, frivolous lawsuits would be thrown out of court – no longer. In 2002, courts were asked to consider a suit against McDonalds for causing obesity.[1] In another case, a woman “suffered burns after accidentally spilling hot McDonalds coffee in her lap. She sued the restaurant chain, and was awarded $2.9 million by a jury.
     “A judge reduced the award to $400,000, and {the litigant} and the company later reached an out of court settlement for an undisclosed amount. Advocates of tort reform seized on the case as an example of frivolous litigation.” (Ref. 2)

     In another case, a victim of his own drunk driving accident sued bars that served him alcohol even though he admitted that he was driving drunk and using a phony ID card because he was 19 and too young to legally drink. The public would be much better served by throwing out such suits and instead prosecuting the person for falsification of a document and for endangerment to himself and the public by allowing himself to drive after becoming drunk.

     In another misuse of our court system, an associate dean at Northeastern University in Boston was soliciting parents and teenagers across the state of Massachusetts to serve as plaintiffs in a lawsuit against the soft drink industry for causing obesity. We here have a great lesson being taught to our children - Don’t take responsibility for your own actions. Blame someone else and take them into our overcrowded court system to make money for yourselves and to fuel the money-making law tort industry.

     Who ends up paying for the court costs and damage awards? You and I and every other citizen of this country do.

     Why do we put up with this form of legalized robbery? - because tort lawyers make enormous amounts of money from these cases. How much money do tort lawyers actually make? Consider this. In a 1993 issue of Forbes Magazine, it was reported that just one tort lawyer, representing about 10,000 asbestos plaintiffs, would likely rake in nearly $300 million in fees. And while we may hear of similar large awards, what we fail to hear is the larger number of cases that never get decided in court because the defendants find it cheaper to settle before a decision is handed down. I call that legalized extortion. It doesn’t matter whether or not the plaintiff has a legitimate claim. The only issue is whether or not it’s cheaper to settle out of court than to go through with a trial.

     From personal experience, I have seen how this works. A company I worked for was sued by a former consultant. I sat through his deposition and quickly concluded that the person, at best, had no legitimate case, and, from where I sat, had lied, misrepresented his professional qualifications and had absolutely no legitimate basis for bringing suit. The company settled with the plaintiff for $20,000. When I expressed my objection, I was told that having the case go to court would cost the company hundreds of thousands of dollars, even if they won. The economics were clear, if not fair.

     It’s been said that much of our medical system is driven by the impetus of minimizing malpractice law suit costs rather than by good medicine doctrine. Consider that in 2003, it was reported that rest home and nursing home operators said that insurance hikes were forcing them to cut back on staff and services and even to drive them out of business. In part, this was the result of large settlements against nursing homes. Several insurers had quit the business, leading to less competition. As a result, higher insurance costs were hitting nursing and rest homes nationwide, creating concerns about their ability to survive. For private-pay facilities, costs are passed on to the residents and in some cases, the increased costs would be too much for them. Those nursing homes that are funded largely with Medicare and Medicaid dollars would have to put off new purchases and renovations, hire less staff or dip into savings.

     As a consequence, nursing home operators were pushing for national legislation to limit malpractice awards. The lack of reasonable limits really threatens the ability of nursing homes to be able to provide reasonable quality of care to their residents.

     There have been physician strikes because of exorbitantly high malpractice insurance premiums. Ultimately, these costs end up being passed on to you and me in higher medical insurance costs or in higher fees paid to our medical providers. In some cases, the effect is to restrict or eliminate medical services.

     Another example of the use of the courts to delay, frustrate, blackmail and incur enormous cost escalations is today taking place here in Greater Boston. After years of planning, exhaustive studies, public analysis and evaluation by a state board, and multiple environmental reviews, Joseph Curtatone, mayor of Somerville has filed a twelfth hour environmental appeal resulting in the stoppage of work on the multimillion dollar Wynn Casino that was to be built in the neighboring city of Everett.

     Curtatone was an unwavering opponent of Wynn Resorts’ planned 24-story casino and hotel complex on the banks of the Mystic River, a short distance from Somerville. Somerville sued the state’s gaming commission over its decision to award a casino license to Wynn and later asked a judge to overturn a key environmental approval previously granted by the state of Massachusetts.[3]

     Somerville Mayor Curtatone disingenuously denied that Somerville is looking for money. He stated that, “We’re not interested in some arbitrary number, we’re not looking to be bought off," (Ref. 4) In spite of the fact that the project had already been thoroughly vetted and had received approval of its environmental impact plan, Curtatone claimed that there were environmental issues that were not been fully addressed because of some 18,000 new vehicles coming through Somerville each day.

     Because of the court filing, the Wynn group stopped all work on the project, including the holding of a job fair for prospective Casino workers. The Wynn group issued a release stating that the delay in the project caused by Somerville's environmental appeal would cost the state $660 million a year ($55 million a month) with a loss of $242 million dollars in annual taxes and fees, which were earmarked for specific funds. It included $28 million a year going into the Commonwealth education fund and another $10 million for the public health trust fund. The $660 million figure also included $170 million in payroll and $248 million in goods and services which would be purchased by the resort. [4] Labor unions bemoaned the loss of thousands of construction, and subsequently, permanent casino jobs.

     The Wynn developers pointed out that Wynn had committed to spending more in traffic mitigation in Somerville than the city was spending to prepare for developments at its Assembly Row mixed use project, which was expected to create more traffic than the Wynn casino would.[4]

     Previously, Wynn Resorts had “bought off” Boston’s Mayor, Marty Walsh, by coming to an agreement whereby Boston gets an extra $400,000 a year in compensation for the 15-year term of the agreement. In the deal, Wynn will also reimburse the city $750,000 in legal and other fees.[5]

     Boston’s first lawsuit challenging the casino was dismissed in December 2015 and cost the city $1.9 million in legal fees. The city had also filed another separate suit challenging the legality of Wynn’s license.[5]

     The full Surrounding Community Agreement between Boston and Wynn Resorts included $31 million over 15 years for community impact, $25 million over 10 years for Sullivan Square traffic infrastructure improvements in the Charlestown neighborhood of Boston abutting the planned casino, $11 million for traffic mitigation in Charlestown, $250,000 for a Regional Working Group on a long-term fix for Sullivan Square, $1 million for reimbursement of professional expenses, and a good faith effort to purchase $20 million annually over 15 years from Boston businesses. The deal was negotiated directly by Mayor Walsh and Steve Wynn.[5]

     What the Somerville mayor was doing and what the Boston mayor before him had done was to commit “judicial blackmail”. Both, in essence, were holding a legal gun to Wynn Resorts’ head with their lawsuits and appeals until the developer would agree to pay them off in order to stop the delays and avoid the legal costs of fighting the potentially endless lawsuits and appeals.

     To apply still more pressure to Wynn and Massachusetts to force them to give in to his blackmail demands, Mayor Curtatone was threatening to drag out his environmental appeal for “years and years”. - - - “The Department of Environmental Protection which will hold the first hearing on the appeal Thursday {March 10, 2016}, could take up to six months to rule on the issue. Curatone, however, said he’ll go to court if the State DEP’s ruling doesn’t satisfy his demands.” - - - “{State and local revenues from the project have} been stalled after Wynn officials shut down construction of the gambling palace following Curtatone’s appeal. They also immediately froze hiring for 4,000 union construction jobs and canceled seven job fairs scheduled for Somerville, Everett, Boston, Malden, Medford, Chelsea and Cambridge.” (Ref. 6)

     “Hypocrisy is such an ugly word. And yet how else to describe {the} efforts by Somerville Mayor Joe Curtatone to halt construction of a Wynn Resorts casino in neighboring Everett based of specious [Emphasis mine] environmental grounds. While proceeding apace with three traffic-spewing developments on his own side of town.” (Ref. 7)

     Curtatone’s appeal cites an estimated 20,130 vehicles a day that are anticipated to drive through Somerville to get to or from the nearby Wynn Casino in Everett. But Curtatone conveniently ignores the current traffic flow of 23,529 vehicles a day generated by Somerville’s nearby Assembly Row complex, estimated to increase to 32,418 when phase two of the complex is completed; the 14,7 vehicles a day resulting from Somerville’s redevelopment of Union Square; and the 16,013 vehicles a day resulting from Somerville’s North Point Development.[7]

     In other words, when there is money to be extorted from someone else’s deep pockets, 20,130 vehicles a day in a neighboring community constitutes an environmental problem, but the impact of some 62,735 vehicles a day generated by projects in the mayor’s own city does not! Both appellations, “judicial blackmail” and “hypocrisy” seem appropriate. Another phrase also comes to mind, “the public be damned!”, at least the public outside of Somerville, that is.

     Wynn Resorts, which had already committed millions of dollars to the project, is now faced with mounting costs, and seemingly endless delays while the project is being held up in litigation. In addition, Boston, Everett and Massachusetts all are in danger of losing out on the revenues, jobs, and business that the casino would be generating.

     Here in my hometown, there has been another example of the consequences of a judicial system that is failing us. What should have been a 2- to 5-year project ended up being dragged out to more than 13 years with costs tripling. The original plan was for a project to replenish the sand on the town’s beach with sand from the ocean floor about 9 miles offshore at a projected cost of $10 million or so. That cost ended up at more than $30 million.

     The major contributor to the to the delays and overruns was our outdated and malfunctioning legal system that allows unlimited numbers of lawsuits to be filed which stretch the projects interminably and invariably greatly inflate their ultimate costs. This legal madness is costing America a fortune. Suits against our public projects inflict death by a thousand cuts. All too frequently, the objectives of these suits are not to right a wrong, but to delay, incur legal costs and to discourage the completion of the project. The legal fees, the delays, the time lost, the overloading of our courts, and cost increases due to the delays are incalculable.[8]

     Civil justice is important. But our civil justice system is plagued by high costs and complexity. Too often today, the last place to go for justice is a civil court.

     “Why? Runaway discovery and motions practice has led to runaway costs. A relatively small lawsuit can involve tens if not hundreds of thousands of dollars for depositions and document exchanges. Most attorneys today won't even consider taking cases where the possible award is under $100,000. Most lawsuits settle when one party or the other runs out of money, or when the cost-benefit scale tips. Indeed, only one percent of all civil cases ever even get to trial. [Emphasis mine] As a result, the civil jury trial is all but gone.” (Ref. 9)

     What needs to be done? How do we solve this problem?

     We need to make losers in lawsuits and appeals pay court costs and reimburse the winners for legal costs and financial damages incurred by lawsuit- and appeal-caused delays. What is needed is a revision in our tort laws that makes persons and their lawyers who file frivolous lawsuits bear the defendants’ legal costs and the court costs, maybe with penalties added. We need to unclog our civil courts and we need to reduce the costs to society that result from unnecessary and unjustified civil suits.

     “We need to change the laws. We need to cap liability claims to reasonable amounts. We need to make it harder to bring obviously trivial and foolish suits. We need to make it expensive for both the plaintiff{s} and the{ir} lawyer{s} to bring frivolous court cases.
     “Can this presently be done? Maybe not. The lawyers’ lobby and the presence of large numbers of lawyers in our legislatures make tort {and other judicial} reform highly questionable. Citizens need to file referenda to change the laws of their states. Citizens need to let their legislators know that they want real reform or they will vote for new legislators. Maybe we need to put a law on the books that prohibits lawyers from becoming legislators." (Ref. 10)

     To avoid the judicial blackmail exemplified by the current impasse between the mayor of Somerville in Massachusetts and the planned and approved Wynn Resorts Casino, “we need to pass laws that: 1) eliminate or greatly diminish the number of legal hurdles and roadblocks that a project must put up with, 2) drastically reduce the number of agencies and departments that are involved in reviewing and overseeing programs, 3) strictly limit the amount of time permitted to review and approve projects, and 4) prohibit additional reviews and lawsuits once a project is given approval to proceed. As is done in business, the military and as what should be done in government, all review, dissent and discussion should be encouraged and permitted at the commencement of the project and up to a clearly defined decision point. After that final decision point is reached, discussion should be terminated and the project should then go forward at all reasonable speed.” (Ref. 11)



  1. McDonald's obesity suit tossed, Jonathan Wald, CNN Money, 17 February 2003.
  2. Woman Sues Dunkin' Donuts Over Hot Cider; A Look Behind Beverage Suit Tsunami, Alan Farnham, ABC News, 25 February 2014.
  3. Somerville files new claim against Everett casino, Sean P. Murphy, Boston Globe, 12 February 2016.
  4. Somerville Challenge To Everett Casino Turns Into War of Words , Craig LeMoult, WGBH NEWS,
    19 February 2016.
  5. Walsh and Wynn agree on deal for Everett casino, Dialynn Dwyer,, 27 January 2016.
  6. State $$ in play despite Wynn block, Hillary Chabot, Boston Herald, Page 10, 8 March 2016.
  7. Traffic double standard, OpEd, Boston Herald, Page 14, 8 March 2016.
  8. Environmentalists and Bureaucrats Combine to Cheat Us, David Burton,, Article 202,
    26 September 2014.
  9. 5 Steps for Fixing the Civil Justice System, Rebecca Love Kourlis, The Atlantic, 11 June 2012.
  10. Stop the liability tort madness, David Burton,, Article 5, 31 October 2005.
  11. Government Gone Haywire, David Burton,, Article 113, 11 November 2011.

  11 March 2016 {Article 245; Undecided_45}    
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