ATLA's constitutional litigators fight 'tort reform.' (Association of Trial Lawyers of America)(President's Page)

On December 18, the Illinois Supreme Court struck down as unconstitutional that state's 1995 "tort reform" statute, one of the most comprehensive and draconian in the nation. The statute constituted a wish-list for those who would skew the civil justice system at the expense of injured workers and consumers. The law was ballyhooed by its supporters as a model for the nation, and "reformers" in other states began to use it as a blueprint for new laws.

Among its many ill-conceived provisions, the Illinois law capped noneconomic damages at $500,000; abolished joint and several liability; and mandated unlimited disclosure of plaintiffs' medical information and records, relevant or not. The "tort reform" crew pulled out all the stops in defense of their handiwork. The trial bar could afford to do no less, and that effort happily spelled victory.

By a 5-1 decision in Best v. Taylor Machine Works, the Illinois Supreme Court struck down the statute in its entirety, holding that the core provisions violated the separation of powers principle and the state constitutional ban on special legislation. Other provisions were held not to be severable and also unconstitutional.

Leading members of the Illinois Trial Lawyers Association, with assistance from ATLA's Legal Affairs staff, were able to develop a strategy, constitutional arguments, and a series of coordinated cases during a more than two-year period that culminated in December's constitutional vindication. The Illinois trial bar has a great deal to be proud of. The nation's trial bar also owes a debt of gratitude for Illinois's selfless effort because the successful challenge has stopped the gathering momentum for this kind of "take-no-prisoners" approach to undermining civil justice.

ATLA is pleased to have had a substantial role in assisting the Illinois effort. We could do so because ATLA has developed an in-house capacity to bring constitutional litigation under the leadership of Bob Peck, director of Legal Affairs, and members of his staff--Ned Miltenberg, Jim Rooks, and Jeff White.

That "tort reform" implicates fundamental constitutional principles ought to be no surprise to the average trial lawyer. The right to trial by jury has long been ATLA's calling card. Still, there is much more to the relationship between civil justice and constitutional law. As early as 1803, the U.S. Supreme Court recognized in Marbury v. Madison that "the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection."

Brandishing this principle, along with other fundamental tenets of constitutional law, including the many unique provisions contained in state constitutions, ATLA's constitutional litigation program is shoring up fundamental principles of access to justice and advancing consumer rights. In cases in Indiana and Oregon, for example, the program is advancing the meaning and scope of the "right to a remedy" clause found in 38 state constitutions.

The creative arguments being devised by ATLA's constitutional litigators have attracted notice from some of the nation's most eminent legal scholars, judges, and lawyers. The arguments our lawyers have developed in support of the fair administration of the civil justice system reach back to the nation's first principles and their English common law and statutory antecedents. They take advantage of the unique histories of the states where these actions are brought. Our ability to put forth constitutional arguments of this nature has caused Legal Affairs Committee cochair Ken Suggs of Columbia, South Carolina, to suggest that ATLA may have the best constitutional law firm in the nation on its staff. I agree.

Most recently, the Ohio Academy of Trial Lawyers filed an original action in the state supreme court that challenges a "tort reform" law as devastating to consumer and worker rights as the Illinois statute that was struck down. The complaint, filed in November, alleges eight different constitutional causes of action but focuses heavily on the legislature's illicit power grab of authority that the state constitution assigns exclusively to the supreme court.

The action seeks certification of a defendant class consisting of the entire trial bench, since these judges are responsible for implementing the new law. It asks the supreme court to issue writs of mandamus and prohibition to ensure the rules of civil procedure and evidence are observed, notwithstanding contrary provisions in the "reform" statute. The approach this case pioneers is the most recent example of the constitutional thinking that ATLA's lawyers now advance in court.

It is essential to remember that the kinds of "tort reform" laws cropping up in the states are not just attacks on consumer rights, juries, and the trial bar. They are an assault on the judiciary as well. Unable to prevail before neutral tribunals, "reformers" seek to bend centuries-old legal principles to the breaking point and prevent the judiciary from being a bulwark for liberty. Luckily, the framers of our constitutions gave us tools to prevent that eventuality.

The victory in Illinois was a well-earned one that saw the trial bar at its best in defense of the people's access to justice. ATLA stands ready to secure other such victories wherever they are needed.