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Defending justice, one case at a time.

The fight to protect every American's right to seek justice in a court of law is a daunting and seemingly endless task. For years, tort "reform" proponents have waged a well-financed war on the civil justice system--one with many battlefronts.

The American Association for Justice, its members, and its state affiliates can be proud of the many remarkable successes they have achieved in combating these formidable forces. Realistically, however, we must admit that our best efforts are not always enough, and sometimes impediments to the fundamental right of access to justice and full redress for our clients become law.

More than a decade ago, AAJ determined that it needed to challenge the constitutionality of laws that restrict plaintiffs' rights. With an eye to developing specialized expertise, AAJ hired lawyers with experience in constitutional issues. Their successful early efforts gave birth in 2001 to a law firm, the Center for Constitutional Litigation (CCL), which has achieved a remarkable record of victories in cases before the U.S. Supreme Court, state high courts, and a wide variety of administrative, policy, and rulemaking bodies.

Several fronts

CCL has had a busy year. Last March, Senior Counsel Ned Miltenberg argued a case before the Georgia Supreme Court that concerned that state's two-year-old tort "reform" law. A provision in the law allowed a defendant to recover attorney fees and litigation expenses from a plaintiff who had rejected a settlement offer and who later either lost at trial or received an award that was less than 75 percent of the settlement offer. The court agreed with CCL's argument that the law could not be applied retroactively.

In November, Miltenberg again appeared before that court, asking it to consider whether the legislature had the authority to include a provision in the "reform" law that set stricter admissibility standards for expert testimony in civil cases than are used in criminal cases.

When Missouri amended its workers' compensation law to drastically shrink coverage of injured employees and add business-friendly defenses, CCL's Senior Counsel Jeffrey White mustered the legal arguments against the law, arguing the case in November on behalf of a broad coalition of labor unions.

CCL Vice President John Vail and litigation associate Andre Mura have mounted multiple challenges to the Graves Amendment, a federal law that grants rental car companies immunity from liability for damage caused by those who rent their vehicles. In September, a federal district court in Florida handed Vail and Mura a victory in a challenge to the Graves Amendment when it declared that Congress has no Commerce Clause power to regulate state tort law.

Vail has also led the firm's fight against the intimidation of plaintiffs' experts in medical negligence cases by professional societies.

CCL's work supports AAJ's fight against federal preemption of state tort remedies. Senior Counsel Lou Bograd leads this effort. Working with the D.C.-based consumer advocacy group Public Justice, Bograd racked up two victories when trial courts ruled--in October 2006 and April 2007--that FDA regulations do not preempt failure-to-warn cases.

White wrote AAJ's amicus brief in the pending U.S. Supreme Court preemption case of Riegel v. Medtronic, while litigation associate Francine Hochberg authored AAJ's amicus brief in another preemption case before the Court, Warner-Lambert v. Kent.

AAJ has pressed Congress to reexamine the reach of the Federal Arbitration Act, and CCL has urged the courts to recognize the act's limitations. Last February, Vail argued a case before the Ohio Supreme Court, asking it to limit how parties can be bound to arbitration; in June, the court issued its ruling, granting CCL's request. Litigation associate Valerie Nannery, in a series of cases arising in the Virgin Islands, has invoked a territorial statute asserting a requirement for a knowing and voluntary waiver of a jury trial.

The integrity of the jury is at issue in litigation in Ohio led by CCL Senior Counsel Steve Pershing. Cases there challenge practices that allow a judge to rehabilitate a juror despite evidence that he or she cannot be impartial, and that allow each defendant the same number of peremptory challenges that are allowed to all plaintiffs combined. Pershing is also handling cases that challenge the constitutionality of medical screening panels in other states.

This is but a sampling of recent litigation undertaken by CCL under the leadership of its president, Bob Peck. AAJ is proud to be a principal client of CCL and to use that relationship to help state trial lawyer associations mount challenges to laws that would deny Americans their constitutional rights.
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Author:Peterson, Kathleen Flynn
Article Type:President's page
Date:Feb 1, 2008
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