Trial attorneys contribute to politicians who make plaintiff‐friendly laws. Beneficiaries of the resulting lawsuits contribute to the same politicians. Then the trial bar finances the campaigns of plaintiff‐friendly judges, whose judgments underwrite the next round of political contributions.
Among the more blatant examples is Microsoft, whose critics have been giving generously to Vice President Al Gore and other Democrats.
More generally, figures the American Tort Reform Association, the trial bar has provided $60 million to opponents of tort reform between 1988 and 1996.
Even more donations are likely to flow as personal injury attorneys digest the incredible $20 billion in fees collected from the tobacco litigation.
More worrisome are contributions from attorneys to assure friendly courts. Consider the case of Ohio. Earlier this year a 4–3 majority of the Ohio Supreme Court tossed out a 3‐year‐old tort reform package.
According to an analysis by the grass‐roots Ohio Citizens against Lawsuit Abuse, since 1992 the four justices in the majority received $1,528,054 from personal injury attorneys.
The three dissenting justices collected only $70,704 from the trial bar.
Of course, no explicit quid pro quo can be shown. However, the trial bar’s lavish fund raising inevitably calls into question the justices’ impartiality.
Since 1991 Ohio courts have in 14 separate cases tossed out legislative limits on negligence filings and damages.
The August decision overturned a reform package that capped punitive damages (used to punish errant defendants) and “pain and suffering” awards in medical cases.
The measure also tightened rules governing case filings, court procedures, and evidence.
In this way trial attorneys are threatening the entire legal reform movement. This year a dozen states have passed bills limiting liability for Y2K computer problems.
More than half of the states, reports ATRA, have limited joint and several liability, punitive damages, and recovery for non‐economic damages, and permitted introduction of evidence of payment from collateral sources.
So the trial bar has increasingly turned to judges to block reform. In October a Louisiana trial court effectively overturned a state law passed earlier this year requiring that people be injured before they can sue for being injured.
At least the latter case only involved dubious statutory interpretation. More often, sympathetic judges have relied on obscure and heretofore largely meaningless provisions of state constitutions to block reform.
For instance, state courts have used guarantees of a “right to remedy” and “open courts” to prevent any limitation on damages and clauses regarding “separation of powers” to establish exclusive judicial control of tort law.
In April, the Kentucky State Supreme Court voided as “oppressive” legislation increasing evidentiary requirements for assessing punitive damages.
All told, ATRA estimates, there have been more than 90 cases nullifying one or another tort reforms in 26 states over the last 15 years. Judges in Alabama, Illinois, Kentucky and Ohio have been particularly hostile to attempts to limit litigation abuse.
The record is not entirely bleak. In a number of these states some reform measures have withstood judicial challenge.
Moreover, in other jurisdictions _ California, Massachusetts, New York and Virginia, for instance _ jurists have generally upheld reforms.
In late July the Michigan Supreme Court rejected a challenge to legislation establishing more stringent requirements for expert witnesses in medical malpractice cases.
Nevertheless, judicial nullification remains a serious barrier to tort reform. Especially when combined with the trial bar’s financing of judicial races.
Since the only real campaign finance reform is to replace today’s perverse regulatory miasma with full disclosure, tort reform advocates must fight fire with fire. They must give, and give generously, to political and judicial supporters of tort reform.
The legislative and executive branches must battle back. In particular, they should mobilize public support against judicial abuses of power, which is especially important in states where voters choose jurists.
Also effective would be constitutional amendments to authorize or codify tort reform. Another strategy, appropriate where the market is truly national, is federal legislation, such as the 1998 Product Liability Reform Act.
The campaign against frivolous and abusive litigation has made significant progress in recent years. But the political clout of the trial bar poses a barrier not only to sound legislation, but also sound judicial decisions.
Only a sustained effort at both the state and national levels is likely to overcome continuing resistance by trial attorneys and their allies on the bench.