Legal Process Reform

Overview

Forum shopping involves a lawyer or law firm looking for a particular state and a particular court in which to file a suit because it will allow him the most favorable outcome. These are places where there is a systematic bias against defendants, particularly those defendants located outside of the state. These places have established records for providing unfair and outlandish awards. Personal injury lawyers seek out these jurisdictions and file cases there because they know they will receive a large reward, a favorable precedent, or both.

One may note that most large-scale class action lawsuits are filed there.

Virginia State Supreme Court Justice Richard Neely candidly described one of the reasons behind this phenomenon in his recent book The Product Liability Mess: How Business Can Be Rescued From the Politics of State Courts 4, 62 (1998): "As long as I am allowed to redistribute wealth from out-of-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else money away, but so is my job security, because the in-state plaintiffs, their families, and their friends will reelect me.... It should be obvious that the in-state local plaintiff, his witnesses and his friends, can all vote for the judge, while the out-of-state defendants can't even be relied upon to send a campaign donation."

To illustrate:

Washington, DC, May 3, 2004 -- In a trial against Bayer in the Judicial Hellhole of Nueces County, Texas, the plaintiff learned after losing the case that he could have settled and received $250,000, if only his lawyer would have told him about the offer.

“This lawyer failed to tell his client of the settlement offer because of his own greed,” said ATRA President Sherman Joyce. “This kind of behavior is part of what constitutes labeling a jurisdiction a Judicial Hellhole.”

An article that appeared in today’s Wall Street Journal exposes personal injury lawyer Mikal Watts, who here represented an 82-year-old plaintiff allegedly injured by Baycol, the cholesterol-lowering drug manufactured by Bayer.

The elderly plaintiff was stunned upon learning the jury verdict that sided with the defendant and said: “Watts thought he could make a killing,” but “I got nothing, not a penny.” As for the settlement, the plaintiff said: “The lawyer never told us. We might have taken it.”

Seeking $50 million in compensatory damages and $500 million in punitive damages for the case, Watts “refused to consider this or any other offer unless Bayer settled all 1,400 of his Baycol cases.”

“This lawyer was clearly looking out for his own interests and not those of his client,” Joyce concluded.

To further illustrate:

While the tabloids were having a field day recently with the signals a juror in the Tyco trial was allegedly flashing, elsewhere in Manhattan lawyers for the firearms industry were asking the Second Circuit Court of Appeals to recuse a judge they say is sending his own “OK” signal to plaintiffs in a highly contentious gun case.

At the center of this storm is federal Judge Jack Weinstein, who is well known for his creative interpretations of liability laws. The city of New York v. Beretta, which is an effort to use the public nuisance laws to blame the gun industry for urban violence. The industry has ample reason to fear that it will never get a fair shake in Judge Weinstein’s courtroom.

Let’s start with the snarky way this case ended up in his court. In theory case assignments are random. But in practice no fewer than 11 gun-litigation cases have been steered to Judge Weinstein. Plaintiffs do this by requesting their case be sent to judges hearing “related” litigation. Properly used, this has legitimate purpose in making courts more effieient. But when it’s abused—as it is here—it amounts to judge-shopping by the plaintiffs bar.

The Wall Street Journal, April 7, 2004 p. 18

Judicial Hellholes

The American Tort Reform Association as one of America’s most prominent legal reform groups identifies and lists places sought out by plaintiffs lawyers which they term Judicial Hellholes: Judicial Hellholes are state trial court jurisdictions where ATRA believes that impartial justice is unavailable. Personal injury lawyers seek out these jurisdictions and file cases there because they know they will receive a large reward, a favorable precedent, or both.


Here is their list for 2004:

Madison County, Illinois
St. Clair County, Illinois
Hampton County, South Carolina
West Virginia (entire state)
Jefferson County, Texas
Orleans Parish, Louisiana
South Florida
Philadelphia, Pennsylvania
Los Angeles, California

http://www.atra.org/reports/hellholes/

And the comments of their president Sherman Joyce in The Wall Street Journal fleshes out the problem and provides a solution:

For Mississippi, it is the best of times; for Madison County, Illinois, it is the worst of times.

A compendium of the worst courts in the United States, the third annual “Judicial Hellholes: report, released today, tells a remarkable tale of how Mississippi has turned its civil-justice system around, and graduated from this list. Meanwhile, litigation woes worsened and metastasized in this year’s list-topper, Madison County, Illinois.

Only three years ago, Jefferson County, Miss. was considered ”ground zero” for mass tort litigation. Personal-injury lawyers from across the U.S. flocked there to file claims that had no relation to the jurisdiction, thanks to the state’s lax standards for mass-tort claims and a judge willing to approve virtually any request plaintiffs; counsel put before him. The resulting medical-liability crisis was driving Mississippi doctors out of business.

In just a year much has changed in Mississippi. The most important changes have come at the ballot box. Voters have rejected candidates for governor and the state supreme court who took large sums of campaign cash from personal-injury lawyers with the implicit expectation that they would toe a “pro-litigation” party line.

A new majority on the Supreme Court slashed nonsensical jury awards and changed rules that allowed junk science to proliferate in the courts. And newly elected Mississippi Gov. Haley Barbour crafted a working majority with Democrats in the statehouse and enacted strong legal reforms that are bringing businesses back to Mississippi.

On the day the state’s tort reform bill was signed into law, Mass Mutual announced it would return to do business in the state; other businesses have followed. And since then, medical-liability insurance rates have also stabilized. Madison County, Illinois, by contrast, has slid further into litigation mire. For the second year in a row, it tops the list of the worst Judicial Hellholes in the U. S. while its neighbor, St. Clair County, makes the list for the first time this year, ranking as the country’s second-worst jurisdiction.

The two counties are host to national class-action lawsuits and asbestos litigation that have no connection to the jurisdictions. Personal-injury lawyers bring those cases there because they know the judges manage cases by scheduling dozens of claims against a single defendant for trial on the same day. Local personal-injury lawyers pick which case to call. While defense counsel must prepare to litigate many claims, plaintiffs’ counsel—who have a long history of contributing handsomely in local judicial races—can prepare for just one case.

Consider Judge Nicholas Byron, who banned the firm of a lawyer who called for a Department of Justice investigation of Madison County legal practices. He also banned the media from his courtroom while conferring with personal injury lawyers disputing how best to divvy up fees from a lucrative class-action settlement.

Defendants aren’t the only victims—local citizens also suffer. Lawsuit abuse has devastated the region’s health-care system. Over half the region’s doctors have been sued in the last four years, even though 85% of claims result in no payment to the plaintiff. Many of the region’s hospitals have eliminated high-risk practices like on-call trauma care. The two counties’ hospitals have lost 161 physicians. In neighboring counties, doctors pay about $20,000 less per year for liability insurance, while doctors in states with caps on damages pay about $150,000 less.

The citizens of Illinois can learn from the Mississippi example and reform their state legal system. But that alone will not solve the problem. Personal-injury lawyers are litigation tourists who easily move on to the next-most-favorable litigation destination. Until Congress passes strong national laws to reform our broken civil justice system, we’ll be stuck with trial lawyer tourists and the hellholes in which they thrive.

Eliminiate forum shopping.
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