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ATLA's law firm takes 'reform' fight to the courts: when the right to trial by jury is threatened, the Center for Constitutional Litigation steps in to support the plaintiff side.

Tort "reform" has grown into a major industry. Once, hills to regulate litigation made brief, disparate forays into the legislative process; now, these measures arise in many forums backed by big money. An army of lobbyists continuously plies legislatures, judicial organizations, law-improvement groups, and legal academia with liability-limiting proposals. A specialized public-relations machinery, dependent on tort "reform" retainers for its existence, constantly promotes an antilitigation agenda, biasing the media, the jury pool, and policy-makers. Politicians wave the tort "reform" banner to guarantee a full war chest for the next election cycle.

Tort restrictionists not only push damages caps, but have also redoubled their efforts to erect unreasonable obstacles before the courthouse door. The policies they pursue deter meritorious claims or, with much the same effect, render them more expensive to bring, more difficult to prove, and more likely to result in diminished recoveries. And they seek change in both courts and state constitutions to validate their errant designs.

Usually, when a state legislature enacts a tort "reform" measure, the Center for Constitutional Litigation (CCL) begins discussing how to challenge the constitutionality of that new deprivation of people's rights. CCL has built a body of case law that vindicates the rights these restrictionists would deny. The center argues for citizens' right to a day in court, civil juries' right to exercise full common law authority, and courts' right to serve as a coequal branch of government, not one subservient to political whims.

For example, in Jinks v. Richland County, CCL represented the plaintiff in validating an important federal tolling statute. (1) In another U.S. Supreme Court case, Angle v. Guinn, CCL represented the Nevada legislature and successfully argued that the High Court should deny certiorari in a case challenging the state supreme court's authority to be the final word on questions of state constitutional law. (2)

Although CCL continues to challenge the constitutionality of caps on damages--the favorite form of tort restriction--it also litigates the constitutionality of other initiatives that limit access to justice.

Contingency fees

Contingency fee arrangements, widely acknowledged as the key to the courthouse for most Americans, are under concerted attack. Last year, the misnamed Common Good, a tort "reform" group, filed petitions in 12 state supreme courts seeking changes to the rules of professional responsibility that would restrict the conditions under which a contingency fee could be charged and the percentage of a settlement that could he the basis of a fee. In addition, proposals to limit these fees appear headed to the ballot in several states. The U.S. Supreme Court recently accepted Banks v. Commissioner of Internal Revenue, to be heard next term, in which the justices will consider whether the amount of a judgment paid as a contingency fee is taxable. (3)

Common Good's petitions would require personal injury lawyers who intend to charge a contingency fee to provide a detailed "notice of injury" to the prospective defendant before filing a suit. The notice would have to include a statement of the claim and the evidence in hand against the defendant. This form of one-way discovery conducted before filing a complaint is intended to help a defendant make an early settlement offer. If that offer is accepted, or if the plaintiff attorney does not file notice, he or she may charge only an hourly fee, capped at 10 percent of the first $100,000, plus 5 percent of any additional recovery.

The five states that considered the Common Good proposal--Alabama, Arizona, Maryland, Ohio, and Utah--rejected it. At press time, the other states had not chosen to take up the matter. Only in Utah was the petition taken seriously enough to require briefing and oral argument, and CCL, representing the Utah Trial Lawyers Association, opposed the petition. We argued that the proposed rule constituted an unworkable, unnecessary, and ultimately counterproductive proposal based on flimsy suppositions about contingency fee practices. It would limit plaintiffs' access to justice and have an adverse ripple effect on civil procedure that its proponents had not acknowledged.

The proponents' memorandum supporting the petition boasted that "plaintiffs will be able to accept lower offers than they currently can," reasoning that defendants would make smaller settlement offers, which plaintiffs would find attractive because reduced contingency fees would make the ultimate payoff about the same. In other words, the proposal--which was touted as a consumer-oriented measure--would benefit only defendants, because they would end up paying less in settlement.

Common Good did not supply any evidence supporting its claim that there was a problem with the existing fee system. In contrast, Utah trial lawyers submitted affidavits that ethics rules regarding reasonable fees are part of the state's legal culture and that the state bar effectively polices fees.

The state supreme court assigned a committee to hear the matter, and it ruled unanimously against the petition, accepting all of CCL's arguments. But the issue is not dead. A recent opinion piece by the petitioners in the National Law Journal attempted to regain some momentum for their proposals. (4) When Philip Howard, chair of Common Good, presented his group's petition to an American Bar Association task force in late April, CCL was there to represent trial lawyers' interests at the meetings. The ABA previously rejected two similar proposals.

Contingency fees are also the subject of legislative and constitutional amendment proposals in several states. For example, the Florida Medical Association (FMA) has proposed a constitutional initiative for the November 2004 ballot to limit contingency fees in "medical liability" cases to 30 percent of the first $250,000 in damages and 10 percent of any additional damages.

CCL worked with the legal team of Floridians for Patient Protection on a brief that detailed several fatal flaws in the FMA's proposal. The Florida Supreme Court is evaluating the initiative for compliance with the state constitution, which mandates that the ballot title and summary convey its purpose clearly and accurately and that the initiative must not embrace more than one subject. If these standards are not met, the court will invalidate the initiative before it reaches the voters.

The Banks case involves whether the plaintiff must include the contingency fee paid in a lawsuit as part of his or her taxable gross income derived from damages. Several circuits have held that such fees may be excluded from gross income. Others have held that the client must include the tee in gross income but can deduct it as a miscellaneous expense. The problem with that regimen is that when contingency fees are included as income, the money can trigger the alternative minimum tax, potentially nullifying the expense deduction.

At press time, CCL planned to file an amicus curiae brief for ATLA in June, arguing that the fees should be excluded from gross income, particularly because those monies usually never pass through the client's hands.

Joint and several liability

Another front has opened on the issue of joint and several liability. Tortfeasors assert that the doctrine unfairly assigns defendants the liability of others. Business interests recently and unsuccessfully argued this point before the Supreme Court in Norfolk & Western Railway Co. v. Ayes. (5) But in urging a form of proportionate liability, the tort restrictionists' understanding of joint and several liability is at odds with modern scholarship.

Numerous cases establish that joint and several liability was recognized by the common law. In fact, the Restatement (Third) of Torts traces such liability for independent tortfeasors back to 1771. (6) The proponents of change also mistakenly combine the separate meanings of "Joint" and "several" to conclude that joint and several liability is a modern development. It is not.

The "joint" in the term was originally a procedural declaration that permitted defendants to be joined in a single lawsuit. Traditional common law permitted joinder only when multiple tortfeasors acted in concert or when vicarious liability applied. Joinder was not, however, a substantive limit on the responsibility of tortfeasors who acted independently and contributed to the same injury. Although these defendants could not be joined in a single action, each remained "severally" (separately) liable for the entire injury. (7)

Under this regime, the defendant had to bring separate actions against other responsible actors to share the liability. Joining multiple wrongdoers and assigning percentages of fault eliminated the defendants' burden of pursuing multiple actions with potentially inconsistent results--thus, the system was devised to help defendants. The percentage share did not represent the amount of harm a defendant caused, but rather the amount other joint tortfeasors could require it to contribute.

By 1933, the Supreme Court declared that "the rule is settled by innumerable authorities that if injury be caused by the concurring negligence of the defendant and a third person, the defendant is liable to the same extent as though it had been caused by his negligence alone." (8)

That decision reflected more than 50 years of precedent. In 1883, for example, the Illinois Supreme Court, like other courts in that era, acknowledged
 the long and well established principle that
 where one has received all actionable injury
 at the hands of two or more wrongdoers, all,
 however numerous, are severally liable to
 him for the full amount of damages occasioned
 by such injury, and the plaintiff in
 such case has his election to sue all jointly,
 or he may bring his separate action against
 each or any one of the wrongdoers. (9)


Today's tort restrictionists, however, push for fractional or partial liability and have won some state legislatures to their side. After Illinois enacted a partial-liability statute nine years ago, the state supreme court was forced to revisit the subject. The court noted that the justification for the new statute was a fairness argument premised on preventing tortfeasors from being assessed more damages than they caused. It found that apportionment of fault
 does not render an indivisible injury 'divisible'
 for purposes of the joint and several liability
 rule. A concurrent tortfeasor is liable for
 the whole of an indivisible injury when his negligence
 is a proximate cause of that damage....
 The mere fact that it may be possible to assign
 some percentage figure to the relative
 culpability of one negligent defendant as
 compared to another does not in any way suggest
 that each defendant's negligence is not a proximate
 cause of the entire indivisible injury. (Emphasis
 added.) (10)


Last year, Arkansas enacted a law that changed joint and several liability, to proportionate liability and permitted defendants to assign it to an absent person. The state also capped both punitive damages and appeals bonds, bifurcated trials, added an affidavit requirement to commencing medical malpractice actions, and abolished the collateral source rule.

CCL, working with the Arkansas Trial Lawyers Association and other groups, is challenging the law's constitutionality because it raises profound separation-of-powers issues by letting the legislature exercise powers allocated to the judiciary. The law also violates a provision of the Arkansas constitution that denies the legislature the power to limit recoveries that are obtainable in personal injury actions. (11)

In addition to these cases, CCL's constitutional challenge docket includes suits pending in Colorado, Iowa, Kentucky, and Oregon. (12) New cases are likely to be filed in another seven states.

Peer review

In recent years, medical societies have used professional peer review procedures to treat expert testimony for plaintiffs as the practice of medicine. Rather than go after negligent doctors, the societies attempt to tarnish physicians testifying for plaintiffs and intimidate others so they will refuse to testify.

Lawyers have told CCL that their witnesses have backed out of testifying--in some instances on the eve of trial--because of implicit and explicit threats regarding the treatment of their testimony. Physicians express concerns primarily about the time, money, and professional approbation they face in defending their legitimate testimony. Peer review programs appear to make it more difficult to find physicians willing to testify and more expensive to hire those who will.

Recently, doctors know.us--a Web site intended to track doctors, patients, and lawyers on the plaintiff side--created such a public furor that it was shut down almost immediately. Though the sponsors denied that it would facilitate blacklisting, the site intimated that its pro-plaintiff list of names could be used to deny service to individuals or deny hospital privileges for doctors who testify for plaintiffs.

A new case on the CCL docket concerns the Florida Medical Association's treatment of a nonmember doctor who testified for the plaintiff in a medical malpractice case. After a defense verdict, the defendants called the doctor before the FMA's peer review committee, falsely alleging that his testimony "provided opinions and [included statements] that fall below reasonable standards," "was for the sole purpose of propagating a frivolous lawsuit for financial gain," and comprised "false testimony and false theories about stroke."

Because this type of peer review could stop witnesses from testifying for plaintiffs, harming access to justice and destroying the deterrent effect of tort law, CCL is representing the doctor, who is charging the FMA with defamation, tortious interference with a business relationship, antitrust violations, and witness intimidation.

Public policy

CCL also presents legislative testimony for ATLA and trial lawyers on policy matters that raise constitutional issues. It spoke last fall before a congressional subcommittee regarding legislation that would have regulated punitive damages, and in February before the North Carolina Legislature's Blue Ribbon Committee on Medical Malpractice, focusing on the constitutionality of caps on noneconomic damages.

CCL also works with the U.S. Judicial Conference's rules committees to ensure that they consider the trial lawyer perspective as they debate rules changes. This year, the Civil Rules Committee has sponsored several meetings on issues central to ATLA members.

In January, the committee explored major legal organizations' existing law-reform projects. Representing ATLA at the meeting, CCL emphasized the need to create a presumption against secret settlements, sealed files, vacatur, and the removal of files from the courthouse. These forms of court-approved secrecy work to sweep identified problems under the rug and lead to preventable injuries and death. The secret settlements involving exploding Firestone tires exemplify the issue.

The misuse of summary judgment in federal court is another CCL focus. In most states, judges review motions for summary judgment in the light most favorable to the nonmoving party and grant them only when no genuine issue of material fact exists and when the moving party is entitled to judgment as a matter of law.

A quartet of Supreme Court cases in the mid-1980s invested federal trial judges with the authority to apply their own interpretation or perception of the tarts or to anticipate what a jury might do. (13) These decisions transformed summary judgment from an infrequent procedural device to a powerful tool to end litigation in cases that previously would have proceeded. The result is an improper limit on the right to a jury trial.

Defendants' discovery abuse is also a CCL concern. Trial lawyers have reported it is increasingly difficult to get garden-variety discovery material produced and that judges seldom provide assistance. Defendants resist discovery and instead move for sanctions against requesting parties, even though they cannot muster any valid argument for such penalties.

Judicial interest in electronic discovery has grown. Proposals being considered at both the state and federal levels would limit a party's duty to produce electronically stored information to "data or information that is responsive to the request and is reasonably available to the responding party in the ordinary course of business."

These proposals would shift the costs of production to the requesting party if the information is deemed unavailable in the ordinary course of business. This also creates a safe harbor for the destruction of electronic documents and backup files, provided that these actions were taken in the course of standard operations.

Under such a rule, parties could design their own document destruction programs, require an extremely high level of proof before plaintiffs can obtain a preservation order, and then be excused for any information destroyed in the interim.

If such a rule had been in place during the Enron debacle, accounting firm Arthur Andersen might still be operating. Members of the firm were convicted of obstructing justice for following its document destruction policy, which they knew would entail destroying relevant documents. Andersen's policy mandated that electronic material be destroyed so as to make recovery impossible--or extremely expensive. This recent experience is a strong argument against the safe-harbor approach that would find such policies fair and appropriate.

The rights to a day in court and a jury trial are under the most comprehensive, well-financed assault ever. "Reformers" have attacked every aspect of tort litigation, from the retention of counsel and precomplaint investigation to appellate review of final judgments. CCL was established to provide legal expertise to help ensure that these proscriptions do not succeed and rights are not lost. In that sense, CCL is everyone's law firm.

Notes

(1.) 123 S. Ct. 1667 (2003).

(2.) Guinn v. Legislature of Nov., 76 P.3d 22 (Nev. 2003), cert. denied, 124 S. Ct. 1662 (2004).

(3.) 345 F. 3d 373. cert. granted, 124 S. Ct. 1712 (2004) (No. 03-892).

(4.) Jeffrey O'Connell & Brent Tantillo, Rein in Contingencies, NAT'L L. J., Mar. 15, 2004, at 39.

(5). 123 S. Ct. 1210, 1227 (2003).

(6.) RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY [section] A18 cmt. a, Reporters" Note at 163 (2000).

(7.) See id. [section] 11 cmt. a, Reporters' Note at 109-10 (citation omitted).

(8.) Miller v. Union Pac. R.R. Co., 290 U.S. 227, 236 (1933) (emphasis added).

(9.) Wabash St. Louis & Pac. Ry. Co. v. Shacklet, 1883 WL 10142, at * 10 (Ill. 1883). See also Boston & Albany R.R. Co. v. Shanly, 107 Mass. 568,577 (1871) ("It is not alleged that these parties acted in concert in making the several articles, or placing their respective articles in the plaintiffs' care, nor even that they had knowledge of each other's proceedings. Each acted separately in sending goods, and omitting to give notice. But each party violated his duly none the less because he was ignorant as to what other articles were to be carried in the same car with his"); THOMAS M. COOLEY, A TREATISE ON THE LAW OF TORTS 144 (2d ed. 1888) ("the party wronged may, at his election, compel any one of the parties chargeable with the act, or any number less than the whole, to compensate him for the injury").

(10.) Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1086 (Ill. 1997) (quoting Coney v. J.L.G. Indus., 454 N.E.2d 197,205 (Ill. 1983)).

(11.) Ark. Advocates for Nursing Home Residents v. Circuit Courts, No. 04-429 (Ark. Filed Apr. 20, 2004).

(12.) Silvia v. Penrose, No. 98 CV3215 (Colo., El Pas County Dist. Ct.); Solberg v. Schneider, No. 03741 LACV023011 (Iowa, Palo Alto County Dist. Ct.); Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.2d 483 (Ky. 2002), cert. granted, 538 U.S. 1028 (2003) (No. 02-1096); Williams v. Philip Morris, Inc., 51 P.3d 670 (Or. Ct. App, 2002), cert. granted, 124 S. Ct. 157 (2003) (No. 02-1553).

(13.) Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 (1984).

ROBERT S. PECK is a president of the Center for Constitutional Litigation in Washington, D.C.
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Title Annotation:Association of Trial Lawyers of America
Author:Peck, Robert S.
Publication:Trial
Date:Jul 1, 2004
Words:3228
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