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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 An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.

When a person begins a civil lawsuit, the person enters into a process called 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 plies 1  
Third person singular present tense of ply1.

Plural of ply1.
 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 re·dou·ble  
v. re·dou·bled, re·dou·bling, re·dou·bles
1. To double.

2. To repeat.

3. Games To double the doubling bid of (an opponent) in bridge.

 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 A state legislature may refer to a legislative branch or body of a political subdivision in a federal system.

The following legislatures exist in the following political subdivisions:
 enacts a tort "reform" measure, the Center for Constitutional Litigation (CCL 1. CCL - Coral Common LISP.
2. CCL - Computer Control Language. English-like query language based on COLINGO, for IBM 1401 and IBM 1410.
) 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 co·e·qual  
Equal with one another, as in rank or size.

An equal.

 branch of government, not one subservient to political whims.

For example, in Jinks jink  
v. jinked, jink·ing, jinks

To make a quick, evasive turn: "He jinked every five seconds, and now brought his tank left again" 
 v. Richland County Richland County is the name of several counties in the United States:
  • Richland County, Illinois
  • Richland County, Montana
  • Richland County, North Dakota
  • Richland County, Ohio
  • Richland County, South Carolina
  • Richland County, Wisconsin

, 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 The Nevada Legislature is the state legislature of the U.S. state of Nevada. The Legislature is a bicameral body, consisting of the lower house Nevada Assembly, with 42 members, and the upper house Nevada Senate, with 21 members.  and successfully argued that the High Court should deny certiorari certiorari

In law, a writ issued by a superior court for the reexamination of an action of a lower court. The writ of certiorari was originally a writ from England's Court of Queen's (King's) Bench to the judges of an inferior court; it was later expanded to include writs
 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 mis·name  
tr.v. mis·named, mis·nam·ing, mis·names
To call by a wrong name.


having an inappropriate or misleading name:
 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 The Commissioner of Internal Revenue (or IRS Commissioner) is the head of the Internal Revenue Service (IRS),[1] a bureau within the United States Department of the Treasury.[2]

The office of Commissioner was created by Congress.
, 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 ripple effect Epidemiology See Signal event.  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 Adv. 1. in other words - otherwise stated; "in other words, we are broke"
put differently
, 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
  • Saint Philip Howard, 20th Earl of Arundel (1557-1595)
  • Philip Howard, English Member of Parliament (1624-1691)
  • Philip Howard, English Member of Parliament (c. 1631-1686)
  • Philip Howard, English Member of Parliament (1669-c.
, chair of Common Good, presented his group's petition to an American Bar Association American Bar Association (ABA), voluntary organization of lawyers admitted to the bar of any state. Founded (1878) largely through the efforts of the Connecticut Bar Association, it is devoted to improving the administration of justice, seeking uniformity of law  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 FMA Full Metal Alchemist (gaming)
FMA Federal Marriage Amendment
FMA Financial Market Authority (Austrian: Österreichische Finanzmarktaufsicht)
FMA Financial Management Association
) 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 Noun 1. amicus curiae brief - a brief presented by someone interested in influencing the outcome of a lawsuit but who is not a party to it
brief, legal brief - a document stating the facts and points of law of a client's case
 for ATLA ATLA Association of Trial Lawyers of America
ATLA American Theological Library Association
ATLA American Trial Lawyers Association
ATLA Air Transport Licensing Authority (Hong Kong)
ATLA Avatar: The Last Airbender
 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 The union in one lawsuit of multiple parties who have the same rights or against whom rights are claimed as coplaintiffs or codefendants. The combination in one lawsuit of two or more causes of action, or grounds for relief.  only when multiple tortfeasors acted in concert or when vicarious liability The tort doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship (such as Parent and Child,  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 joint tortfeasors n. two or more persons whose negligence in a single accident or event causes damages to another person. In many cases the joint tortfeasors are jointly and severally liable for the damages, meaning that any of them can be responsible to pay the  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 The process by which legislative seats are distributed among units entitled to representation; determination of the number of representatives that a state, county, or other subdivision may send to a legislative body. The U.S.  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 Monetary compensation awarded to an injured party that goes beyond that which is necessary to compensate the individual for losses and that is intended to punish the wrongdoer.  and appeals bonds, bifurcated trials, added an affidavit requirement to commencing medical malpractice Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional.  actions, and abolished the collateral source rule The examples and perspective in this article or section may not represent a worldwide view of the subject.
Please [ improve this article] or discuss the issue on the talk page.

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 The Arkansas Constitution is the governing document of the U.S. state of Arkansas. It was first adopted in 1874, shortly after the Brooks-Baxter War; these two events together marked the end of Reconstruction in Arkansas, two years before the disputed 1876 presidential election  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 Testimony about a scientific, technical, or professional issue given by a person qualified to testify because of familiarity with the subject or special training in the field.  for plaintiffs as the practice of medicine. Rather than go after negligent doctors, the societies attempt to tarnish tarnish,
n 1. surface discoloration or loss of luster by metals. Under oral conditions, it often results from hard and soft deposits.
2. a chemical process by which a metal surface is discolored or its luster destroyed.
 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 On the Eve (Накануне in Russian) is the third novel by famous Russian writer Ivan Turgenev, best known for his short stories and the novel Fathers and Sons.  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 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 A body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. , CCL is representing the doctor, who is charging the FMA with defamation, tortious interference Tortious interference, in the common law of tort, occurs when a person intentionally damages the plaintiff's contractual or other business relationships. This tort is broadly divided into two categories, one specific to contractual relationships (irrespective of whether they  with a business relationship, antitrust violations, and witness intimidation Witness intimidation involves witnesses crucial to court proceedings being threatened in order to pressure or extort them not to testify. The refusal of key witnesses to testify commonly renders a case with inadequate physical evidence void in a court of law. .

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 North Carolina, state in the SE United States. It is bordered by the Atlantic Ocean (E), South Carolina and Georgia (S), Tennessee (W), and Virginia (N). Facts and Figures

Area, 52,586 sq mi (136,198 sq km). Pop.
 Legislature's Blue Ribbon Committee Noun 1. blue ribbon committee - an independent and exclusive commission of nonpartisan statesmen and experts formed to investigate some important governmental issue
blue ribbon commission
 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 Judgment as a matter of law (JMOL) is a motion made by a party, during trial, claiming the opposing party has insufficient evidence to reasonably support its case. JMOL is similar to summary judgment, which is a motion made before trial. .

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 Safe Harbor

1. A legal provision to reduce or eliminate liability as long as good faith is demonstrated.

2. A form of shark repellent implemented by a target company acquiring a business that is so poorly regulated that the target itself is less attractive.
 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 See litigation hold. , 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 For the U.S. Supreme Court case commonly known as Arthur Andersen, see .
Arthur Andersen LLP, based in Chicago, was once one of the "Big Five" accounting firms (the other four are PricewaterhouseCoopers, Deloitte Touche Tohmatsu, Ernst & Young and KPMG), performing
 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.


(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 rein in

1. to stop (a horse) by pulling on the reins

2. to restrict or stop: either prices or wage packets had to be reined in

Verb 1.
 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 Thomas McIntyre Cooley (January 6, 1824 – September 12, 1898) was the 25th Justice and a Chief Justice of the Michigan Supreme Court, between 1864 and 1885.

Born in Attica, New York, he was Dean of the University of Michigan Law School.
, 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 coney or cony (both: kō`nē), name used for the rabbit (Oryctolagus) and for its fur; more often, for the pika, a small rodent found at high altitudes in both hemispheres; and for the hyrax, a small herbivorous,  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 LACV LACV Light Armored Combat Vehicle 023011 (Iowa, Palo Alto Palo Alto, city, California
Palo Alto (păl`ō ăl`tō), city (1990 pop. 55,900), Santa Clara co., W Calif.; inc. 1894. Although primarily residential, Palo Alto has aerospace, electronics, and advanced research industries.
 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 Celotex Corp. v. Catrett, 477 U.S. 317 (1986), was a case decided by the United States Supreme Court, written by then-Associate Justice (later Chief Justice) William Rehnquist. , 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Liberty Lobby was a political advocacy organization which existed in the United States between 1955 and 2001. It was founded by Willis Carto.

Liberty Lobby was the subject of much criticism from all quarters of the political spectrum.
, 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.
Date:Jul 1, 2004
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