October 2000

Letters

Editor:
For the past 20 years, in its effort to place profit over safety, big business has waged a relentless propaganda war against the civil justice system, creating a false public impression that the tort system has run amuck and needs "reform."

The danger to the civil justice system is now greater than ever, as the country may choose a president beholden to corporate interests and whose number one priority is "tort reform." George W. Bush touts his own record as governor in Texas, where he successfully pushed for wide-ranging tort restrictions, including caps on non-economic damages, not just punitive damages. His notion of justice means protecting corporate wrongdoers by sacrificing the rights of injured families and consumers to seek legal redress.

For example, in 1993 Texas adopted a statute of repose giving companies blanket immunity from lawsuits for defective equipment more than 15 years old. Thus, a company that from the outset knowingly manufactures a dangerous product is off the hook. In 1993, Texas became the only state in which a sick smoker cannot sue a tobacco company. In 1995, Texas imposed a $750,000 cap on non-economic damages. No matter how horrific a citizen's injuries, a jury can no longer decide the merits of the case because George W. Bush and the Texas Legislature have decided that there is no injury worth more than $750,000. And even better than his proposed rollback of taxes on the wealthy, Bush has already convinced the Texas Legislature to make it so that accountants, doctors, lawyers, engineers and real estate agents can no longer be sued under the state's consumer protection laws.

If elected, Bush has vowed to push for similar "reforms" at the national level. He favors the replacement of substantive tort law with safety standards promulgated and voluntarily followed by his corporate cronies. He would federalize class-action lawsuits, ban federal agencies from paying lawyers with contingency fees, require any lawyer who rejects a pretrial settlement and later loses the case (or receives a much smaller settlement than the offer) to pay his opponents' legal fees as "punishment for continuing the case," and enact "three strikes" legislation that would bar a lawyer found to have filed three "frivolous" lawsuits (but not a lawyer who has filed three "frivolous" defenses) from federal court for three years.

Bush's so-called "tort reform" measures are shamelessly designed to tilt the legal playing field in favor of big business. Acting under the guise of "citizen" groups opposed to "lawsuit abuse," business interests have undermined consumer rights through a variety of insidious measures, including caps on damages and increased evidentiary burdens, and the abolition or corruption of traditional tort law doctrines such as joint and several liability. They have used their muscle and propaganda to convince people that it is a good thing for ordinary citizens to give up their rights, and that they should despise the trial lawyers who champion those rights. They have manufactured myths and substantially distorted the facts to further their agenda of getting the public angry about a civil justice system supposedly gone awry. See Marc Galanter, An Oil Strike in Hell: Contemporary Legends About the Civil Justice System, 40 Ariz. L. Rev. 717 (1998).

Notwithstanding the powerful corporate propoganda machine, American citizens reject efforts to strip away their rights when they are educated about the true motives of tort "reformers." We need look no further than the recent defeat of Ballot Measure 81 in Oregon to see this truth. Faced with an insurance industry-funded public referendum to reverse the effects of an Oregon Supreme Court decision striking down caps on personal injury damages, state voters by more than a 3-to-1 margin refused to strip juries of their decision-making power and citizens of their rights.

Efforts to expose the truth about "tort reform" get a boost from a recent report released by the Center for Justice & Democracy and Public Citizen, THE CALA FILES: The Secret Campaign by Big Tobacco and Other Major Industries to Take Away Your Rights. The report, co-authored by Carl Deal, an investigative journalist, and Joanne Doroshow, an attorney and CJ&D's executive director, exposes the big lie and those who tell it. The authors drew from the newly released industry papers uncovered in state lawsuits against the five major tobacco companies. They also reviewed other public documents and interviewed lobbyists, elected officials and paid consultants.

Their report finds that "lawsuit abuse" groups, typically called Citizens Against Lawsuit Abuse (CALA), Lawsuit Abuse Watch, or Stop Lawsuit Abuse (collectively referred to as CALAs), are part of a national, corporate-backed network of front groups that receive considerable financial and strategic help from the tobacco industry and some of the country's biggest corporations. The organizations masquerade as "grassroots" citizen groups angry about so-called lawsuit abuse. Their purpose is to generate public scorn for the civil justice system, juries and judges, and to pave the way for the enactment of laws that shield corporations from accountability. Among the report's findings are the following:

• Since 1991, "tort reform" advocates have set up dozens of tax-exempt groups in at least 18 states (currently there are 27 active groups) to plant their spurious "lawsuit abuse" message in the media and the public consciousness, and to influence legislation, the judiciary and jurors. These groups claim to speak for average Americans and represent themselves as "grassroots" citizen groups determined to protect consumer interests. But their tax filings and funding sources show that they in fact represent major corporations and industries seeking to escape liability for the harm they cause consumers.

• A huge cache of documents made public in the late 1990s during state litigation against the tobacco industry reveals that big tobacco spent millions of dollars annually supporting the American Tort Reform Association (ATRA), its grassroots lobbying firm, APCO & Associates, state CALAs and other activities to weaken tort laws in many states. ATRA and APCO supply the CALA groups with strategic guidance, media training and pre-produced radio, television, print advertising and billboards designed for maximum media exposure and legislative impact.

• Some CALAS, like the one in Louisiana, were virtually created by the tobacco industry. Tobacco money has gone directly to ATRA, APCO and state organizations, and has been indirectly funneled to the cause through trade associations, lobbyists and law firms, such as the Washington, D.C. firm of Convington & Burling. In the late 1980s, big tobacco's efforts were instrumental in the passage of legislation immunizing the industry against product liability claims in a number of states.

• The CALA blueprint was honed in South Texas in the early 1990s. Texas Gov. George W. Bush, who raised more than $4 million in his gubernatorial races from Texas "tort reform" groups, has been one of the Texas CALA's most prominent champions.

• A principal focus of CALA groups since the mid-1990s has been to ensure the election of pro-industry state judges and the defeat of judges who typically support plaintiffs' verdicts or have voted to strike down state tort law restrictions as unconstitutional.

The above campaign has generated the myth that corporate America is in desperate need of relief from runaway juries, who are compromised by complex issues and the emotional speeches of eloquent trial lawyers. This myth was dispelled in an unprecedented survey of nearly 1,000 state and federal trial judges conducted by the Southern Methodist School of Law. That survey revealed that judges overwhelmingly "believe that the system is in good condition, needing, at best, only minor work." As reported in the Dallas Morning News, 96 percent of the responding judges emphatically agreed with jury verdicts most or all of the time. An impressive 76.9 percent of the judges agreed with the premise that jurors do "very well" in reaching verdicts. A similar 76.4 percent had never seen a runaway verdict.

The Washington State Trial Lawyers Association is committed to fighting this misinformation campaign and educating people regarding the value and power of their legal rights. When they learn the truth, we believe that the citizens of our state, like those in Oregon, will overwhelmingly reject legislative efforts to strip them of their rights.

Editor:
Across Washington, superior courts vary from 90 cases filed annually, heard by one judge who covers three counties, to 75,915 filings heard by 51 judges and 10 commissioners. Necessarily, courts in different counties will be organized very differently. We could hardly expect Garfield County to have a family law motions calendar five days a week, or King County to hear family law motions on only the first Friday of each month. Courts, to describe how they are organized, adopt local rules.

Local rules should tell users how to conduct business in that court: when calendars are heard, how to get a motion on a calendar, how to get papers to the judge, whether probate motions are heard on a civil motions calendar or a special calendar, and which cases are heard in Kent and which in Seattle. By explaining how to use the court, local rules facilitate access to justice. They have become more complex for two reasons: to manage workloads that have grown faster than resources, and to describe more completely how a particular court operates.

Article 4, Section 5 of the state constitution and CR 83 expressly authorize local rules, but even without these provisions, a court would have the inherent authority to adopt local rules. Indeed, a court could not provide a fair and accessible court process without local rules.

Process is important in our judicial system; we are mandated to provide due process. Process promotes uniform treatment of all litigants and facilitates access. There may be a few attorneys willing to practice in a court without local rules, relying instead on guess and trial by error to figure out how the court operates, but most would not.

King County Superior Court rules are probably as complex as any, and far from user-friendly. But the adoption of our case management and individual calendar rules have reduced our time from filing to trial for civil cases by more that one-half. These innovations would never have been adopted if changes could only be implemented statewide.

The real source of frustration is variations in local court organization, something we will never escape. What we need as an antidote are clearer and easier-to-understand local rules.

Editor:
The August Bar News, like some current campaign letters and media ads for upcoming judicial positions, contains endorsements from sitting judges.

At least in some zoning matters, Washington has for a long time, had a general doctrine of "appearance of fairness"— sort of shorthand for if it looks and smells lousy, it probably is.

An elderly client of mine, fortunately still blessed with a mind like a razor blade, asked me how her hypothetical case might come out in front of an endorsing judge when I had endorsed an opposing candidate in that same race? She perceptively smelled a conflict.

Should a goal of judicial impartiality, at least the appearance of total neutrality, be dealt with by an ethics opinion (touched on but not directly in Opinion 46) or in a new Canon of the Code of Judicial Conduct, and if so, how at the same time can an endorsing judge's constitutional rights be balanced and protected?

CJC Canon 7 touches the issue with annoying ambiguity, e.g., CJC7(A)(1)(b) prohibits endorsement of a nonjudicial candidate (thus by implication, endorsement of judicial candidates); CJC7(A)(2) allows speaking to gatherings on behalf of other judicial candidates (emphasis in both by this writer). An unpublished advisory ethics opinion (88-6) commenting on "difficult distinctions" in this area, allowed a retiring judge to endorse a court commissioner for the judge's department.

I find this a troubling dilemma and think further study by some panel or committee of the Supreme Court or Bar Association would be merited. Perhaps a straw poll in the Bar News would be interesting.

The Bar Association's disciplinary staff and Managing Editor Amy Hines's assistance in furnishing relevant citations is gratefully acknowledged.

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