The following is a statement from Steven B. Hantler, Assistant General Counsel, DaimlerChrysler Corporation.
As every trial lawyer knows, one man’s “judicial hellhole” is another “magic jurisdiction.” It all depends on which side of the courtroom you occupy.
“Judicial Hellhole” status is assigned every year by the American Tort Reform Foundation (ATRF), and has become the most reliable measure of litigation abuse in America. Today the group published its fifth annual list of “hellholes” – defined by ATRF as jurisdictions in which “judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits.”
I want to alert you to this important report, and encourage you to understand its significance to our nation and to American industry. (The report and more information are available at the ATRF web site at http://www.ATRF.org)
“Magic jurisdiction” is the coinage of famed trial lawyer Dickie Scruggs – who, in his own way, is also a reliable authority on the subject. In an unguarded moment not long ago, Scruggs described the ease with which the “magic” can be worked in these jurisdictions. “It’s almost impossible to get a fair trial if you’re a defendant,” he said. “Any lawyer fresh out of law school can walk in [and] win the case.” And, if you’re a plaintiff’s lawyer, don’t sweat the details too much because “it doesn’t matter what the law or evidence is.”
Oh, sure, there is still the formality of a trial in these jurisdictions. To hear Scruggs describe the process, though, they might as well dispense with that, too. According to ATRF, there are six of these “Judicial Hellholes” where awards are won by just showing up.
In West Virginia, says the group, courts have “served as the home field for plaintiff’s attorneys determined to bring corporations to their knees.” For lawyers specializing in class action suits, asbestos cases, and medical malpractice lawsuits, South Florida is the place to be. Third in the ATRF rankings came the Rio Grande Valley and Gulf Coast of Texas, known together as a “plaintiff’s paradise” where multimillion verdicts are a sure thing.
The State of Illinois has the distinction of claiming three of the six worst “judicial hellholes” in the nation. In Cook County, Illinois, a long tradition of political corruption now seems to have reached the courts, and Trial Lawyers, Inc. runs the show as firmly as any precinct boss ever did. In St. Clair County, class action lawsuit filings multiplied tenfold between 2002 and 2004 – most of these suits having nothing whatsoever to do with Illinois. The sixth and final jurisdiction – perennial tort-haven Madison County, Illinois – actually showed modest signs of reform in class action and asbestos litigation, and so was elevated in this year’s rankings from a “hellhole” to a judicial “purgatory.”
The ATRF’s rankings, drawing attention to the worst civil injustices, may well have influenced judges in Madison County, a few of whom are starting to crack down on abusive litigation. But don’t think for a moment that the trial lawyers are folding their tents and giving up on these cases. Instead, as the ATRF reports this year, many cases formerly tried in Madison County are being fast-tracked to Delaware – earning that state a spot on ATRF’s Watch List.
Law firms that earned fortunes in Madison County – such Illinois-based Simmons Cooper and Baron and Budd of Dallas, TX – are suddenly discovering Delaware.
As the ATRF report notes, between May 2005 and August 2006, 272 asbestos cases were filed in Delaware, most of which are being driven by out of state law firms.
Recent court rulings on mass scheduling decisions require defense counsel to try multiple cases at the same time in different courtroom, making it difficult if not impossible for defendants to get a fair day in court. ATRF’s “Judicial Hellholes” report also informs us that Simmons Cooper has also become an active political player in Delaware, spreading campaign contributions to, in the words of Simmons Cooper’s chief asbestos litigator, “believe in issues that we believe in.”
Asbestos litigation is already, as a RAND study terms it, “the longest-running mass tort litigation in the United States,” with U.S. companies forking over an estimated $70 billion on more than 730,000 lawsuits. And well over half the money, according to RAND, has gone not to victims but to lawyers. Damages and settlements are now collected from companies with only the remotest connection to the original parties responsible for the asbestos. A “compensable injury,” as now defined in asbestos litigation, no longer even requires evidence of actual health problems arising from exposure to the toxin.
What started as a legitimate effort to redress serious and often fatal injuries resulting from asbestos has now devolved into a venal industry for tort lawyers, many of whom have built entire careers on it and amassed great fortunes along the way.
It will hardly come as welcome news in Wilmington that the “toxic torts” bar is now training its sights on the 600,000 American business incorporated in Delaware. Up until now, Delaware had good reason to boast of a legal climate rated the fairest and most balanced in the nation. The trial bar’s ambitious new plan to turn Delaware into a “judicial hellhole” along the lines of Madison County, Illinois, is surely the last thing that the First State needs.
What Delaware and every other state need are civil courts where suits are decided on the merits – courts that guarantee justice and not just personal enrichment. We need to keep up the good fight, especially in these worst of jurisdictions, so that legal reform can work a “magic” of its own.