Chamber Of Commerce Study: Big Business Says Tort Reform Not Needed
Yesterday, the U.S. Chamber Institute for Legal Reform released its “2012 State Liability Systems Ranking Study,” which asked lawyers and senior executives at companies with over $100 million in annual revenues what they thought about being sued. That’s like asking Yankees fans what they think about the Red Sox.
Seriously, here’s the “Methodology” for the Chamber of Commerce’s “study:”
The final results are based on interviews with a nationally representative sample of 1,125 in-house general counsel, senior litigators or attorneys, and other senior executives who are knowledgeable about litigation matters at public and private companies with annual revenues of at least $100 million.
Does anyone doubt what a bunch of lawyers for big corporations are going to say?
Unsurprisingly, the Chamber of Commerce used these meaningless results from a hopelessly biased survey to spam the Internet with press releases purporting to be tailored to individual states, like this release for California, this release for Pennsylvania, this release for Illinois, this release for West Virginia, and this release for Florida. The highlight of each release was the pro forma quote from Lisa A. Rickard, president of the U.S. Chamber Institute for Legal Reform, who has apparently served her entire legal career in Washington D.C. as a lobbyist. Here’s her deep and sophisticated understanding of the civil litigation environment in each of those five states:
- “Plaintiffs’ lawyers bring cases in California because the state’s courts rubber-stamp class actions and juries award outsized paydays,” said Rickard.
- “Pennsylvania stands geographically between the nation’s worst legal climate in West Virginia and its best in Delaware. Unfortunately, the state is heading more in West Virginia’s direction by allowing plaintiffs’ lawyers to ‘forum shop’ for favorable venues like Philadelphia to cash in,” said Rickard.
- “Illinois continues to suffer from the negative reputations of courts in certain counties, like Cook, Madison, McLean, and St. Clair, which still invite lawsuit abuse and produce jackpot jury awards,” Rickard said.
- “West Virginia continues to suffer from outrageous verdicts, lack of meaningful appellate review, an overzealous attorney general’s office, antiquated laws, and frivolous lawsuits,” said Rickard.
- “Florida’s litigation climate can be attributed in large part to its notorious reputation for exorbitant jury awards,” said Rickard.
“Human sacrifice, dogs and cats living together, mass hysteria!” said Dr. Peter Venkman.
But here’s the incredible part: the hopelessly biased study of corporate lawyers showed that lawyers for big corporations are overwhelmingly satisfied with state courts. More than half said their state court was “excellent” or “pretty good.” A whopping 90% of respondents listed their local jurisdiction as “excellent,” “pretty good” or “fair.” It’s as if you polled a bunch of Yankees fans and 90% said the Red Sox were an excellent, pretty good, or fair team.
When asked to come up with the “most important issues for state policymakers,” the respondents struggled to come up with issues to complain about. In the end, the most common complaint — at a mere 5% of respondents — was to impose more limits on discovery. For all the hoopla about “frivolous lawsuits,” only 4% of respondents could even think to mention that. That finding lines up with the finding of another study The Pop Tort pointed out, in which a survey of businesses found that “Cost and Frequency of Lawsuits/Threatened Lawsuits” was the sixty-fifth highest priority for businesses, just below ”Solid and Hazardous Waste Disposal.” [Update: A commentator notes, correctly, that this study was more focused on small businesses and that "cost of liability insurance" ranked higher. More discussion on that in the comments.]
As I’ve said over and over again on this blog “Tort Reform” is by and large a sham, a fake issue created by a handful of highly vested interests like insurance, pharmaceutical, automotive, and consumer product companies. There is no epidemic of “frivolous lawsuits,” no secret economy of lawyers making millions of dollars just for filing lawsuits. There’s just a civil justice system in which the majority of preventable injuries go unaddressed, a system where every deck is stacked against the plaintiffs.
The Chamber of Commerce and other “tort reform” supporters don’t want to reduce “frivolous” lawsuits; they want to eliminate as many lawsuits as they can, including meritorious ones. Consider their #1 state, Delaware: that’s where, in Dambro v. Meyer, 974 A.2d 121 (Del. 2009), the Delaware Supreme Court held that a patient whose breast cancer went undiagnosed for more than year nonetheless “knew,” or through “the exercise of reasonable diligence” could have known, that she was the victim of malpractice back when the misdiagnosis occurred, and so was required to sue her radiologist within two years of the negligent mammogram reading rather than within two years of learning of the cancer or the possibility of malpractice. Thus, her lawsuit was dismissed before discovery, before summary judgment, before a jury trial, without judge or jury even considering if the doctor actually committed malpractice.
It’s no surprise the Institute for Legal Reform hopelessly misrepresented the results of their own study, and no surprise they took aim at their long-standing target, Philadelphia County. This time they claim Philadelphia “has come to exemplify some of the worst excesses of today’s American civil justice system,” in support of which they cite, well, nothing. Their own study showed that, on everything from damages to impartiality, more than half of respondents said that Pennsylvania was excellent, pretty good, or fair. Again, remember that the survey respondents here aren’t impartial: their job is to protect these large corporations from being held accountable for the damage they cause.
But the Chamber of Commerce (and its Institute for Legal Reform) is a lobbying group. We expect this sort of truthiness from them. Far more disappointing is the reaction of the major media. Capitol Ideas at The Morning Call failed to say what the study actually surveyed, failed to report the actual findings — that big business’ lawyers think our civil litigation system is fine — and then uncritically parroted the arguments of the Hospital and Healthcare Association of Pennsylvania, which lobbies to eliminate patients’ legal rights, without any response from patients’ advocates. CBS 3 only briefly described the source of the study, failed to report the study’s actual findings, and failed to report any opposing views. The Philadelphia Inquirer got the closest to a fair report, noting the nature of the survey and its proponents, and including a response from the Pennsylvania Association for Justice, but it, too, didn’t catch the study’s actual positive findings.
Which brings us back to the real question: it’s no surprise the largest corporations are fighting every day to deny injured consumers the right to even bring lawsuits. The question is why the media keeps parroting this propaganda? Next time the Chamber of Commerce spams the Internet, don’t give them a platform, treat them like any other spam.