Virginia: Wrongful Death – a Lawyer’s Reform

Virginia: Wrongful Death – a Lawyer’s Reform

Trial is the monthly magazine of the American Association for Justice (www.justice.org). Its December 2012 issue is dedicated to “RECLAIMING JUSTICE: BATTLING TORT ‘REFORM’,” which “reform” initiatives often result in medical malpractice legislation that limit victim rights.
Trial’s feature article, “The WEB of TORT ‘REFORM’,” exposes how Fortune 100 companies are trying to limit individual citizens’ legal recovery for product liability: “Major corporations have launched a concerted attack on the most basic tenets of civil justice. What they call tort ‘reform’ is in fact a disingenuous plot to convince Americans that corporations are on the side of ordinary citizens.” Id. at 15.

“The WEB” identifies a half-dozen corporate entities that campaign to restrict a person’s tort rights of redress for wrongful death and personal injuries:

1. Civil Justice Reform Group: CJRG, “comprising the general counsels of some of the largest and most profitable corporations in the world,” is at the “center of the campaign.” Id. at 16.

2. Institute for Legal Reform: “[M]ajor corporations hold the most sway” within the U.S. Chamber of Commerce’s ILR, which is “one of the largest players in the tort ‘reform’ movement” and whose “true goal is to benefit the interests of multinational corporations.” Id. at 16.

3. American Legislative Exchange Council: ALEC is “another secretive group of corporate lobbyists who write model legislation,” such as for “limiting access to the civil justice system for injured people [as] one of its top priorities.” Id. at 16.

4. American Tort Reform Association: ATRA “for many years functioned as the primary public relations arm of the tort ‘reform’ movement,” including with its “Judicial Hellholes project,” i.e., bashing of courts in which its members have lost big cases, and its “Astroturf organizing,” i.e., “faked grassroots support for limiting Americans’ legal rights.” Id. at 17.

5. Searle Civil Justice Institute: Based at George Mason University (“GMU”) in Arlington, Virginia, and affiliated with the Law & Economics Center there, the new SCJI turns focus of the tort reform movement to “academia,” commissioning on average $70,000.00-100,000.00 for the academic community to research and promote 10 suggested issue areas, “such as the ability of state attorneys general to contract with outside counsel, the use of pre-dispute mandatory binding arbitration clauses in contracts, the federal preemption of state tort laws, and class action litigation. Id. at 17.

6. Civil Justice Caucus Academy: Created by GMU’s Law & Economics Center in 2011, CJCA’s executive director immediately was the featured speaker at CJRG, attended by representatives of ILR, ALEC, ATRA, and major corporations. Id. at 17.

Major legislative initiatives of “tort reformers” include repeated attacks on the asbestos bankruptcy trust system and on state attorneys general retaining private law firms to prosecute product liability actions on contingency fees, such as was a success in the 1998 Tobacco Master Settlement Agreement. Id.  at 17-20. Finally, “tort reformers” have focused efforts on the Federal Civil Rules Advisory Committee, toward imposing procedural restraints on the general public’s access to the civil justice system, particularly vis-à-vis spoliation of evidence and class action litigation. Id. at 22.
Trial’s companion feature article is “Spreading the Word about CIVIL JUSTICE.” Subtitled in part “As the civil justice system remains under attack,  plaintiff lawyers are finding creative ways to highlight their role as defenders of public safety;” it highlights “BLOGGING for Justice,” “MARKETING that Matters,” and “Tell One Story at a Time.” Id. at 25-29.

Finally, Trial reports “Recap of Tort ‘Reform’ and Civil Justice Issues in the 112th Congress.” It recounts the historic defeat of H.R.5, the HEALTH Act, a Draconian medical malpractice bill that even a number of Republicans opposed and never got any traction in the Senate.