- Posted by Admin on March 16, 2011
Well, it’s that time again, when the American Tort Reform Association (ATRA) updates their annual report on judicial hellholes. For those who have not yet been introduced to this concept, these are jurisdictions where trial lawyers laugh at the idea of fair trials for defendants, thanks to built-in biases overseen by sympathetic judges.
As ATRA points out, the vast majority of judges in the judicial system are fair. However, as so often is the case, it only takes a few with their own agenda to throw the system out of kilter. When the prevailing culture of a particular jurisdiction is receptive to such bias, fairness can be very hard to achieve. That’s essentially what makes a judicial hellhole.
I won’t dwell on the specific locations that deserve such ignominy this year, but it is worth mentioning them. In declining order (worst first), they are:
• Philadelphia
• State of California, with special mention of Los Angeles and Humboldt County
• State of West Virginia
• South Florida
• Cook County, Illinois
• Clark County, Nevada
This year’s watch list is
• Former #1 hellhole Madison County, Illinois
• Atlantic County, New Jersey
• St. Landry Parish, Louisiana
• District of Columbia
• New York City and Albany, New York
• St. Clair County, Illinois
• McLean County, Illinois
• Gulf Coast of Texas
Of course, ATRA has a reason for publishing this report. After all, embedded in ATRA’s name are the words “tort reform”, which generally ring quite positively to an insurance industry that usually ends up paying the bulk of the questionable and/or excessive rewards, not to mention related overhead such as defense and investigation.
As I mentioned in last year’s blog on this subject, we all end up paying the costs of excessive or frivolous litigation in the end, whether directly through higher insurance premiums or indirectly through higher costs of goods and services (to cover higher insurance premiums of others).
Recall that insurers have a contractual duty to defend claims regardless of their merit. Insurer defense costs add to the overhead created in overly litigious jurisdictions, leveraging the more frequent occurrences and generally higher awards in these areas. Often a plaintiff attorney’s strategy is simply to make the cost of defending a claim higher than the cost of settling, even if the claim is of doubtful merit. It becomes a business decision for the insurer and defendant – a known settlement amount, unfair as it may be, vs. a protracted fight of unknown duration (time equals money) with a similarly unknown outcome (jury award in a plaintiff-friendly jurisdiction).
As a result of these considerations, claims that are denied as unjustified in other states, counties or cities tend to be settled in these plaintiff-friendly areas. All of these combine to mean higher insurance premiums for all. What line of business does this tend to impact the most? Well, what line of business generates the most claims? Auto insurance!
Have you ever wondered why otherwise innocuous states such as Louisiana and Nevada always appear among the most costly auto insurance states? You really have to look no further than their court systems. If anyone ever thought runaway courts were a victimless lottery, they should try footing the bill for insurance in these places where “justice” is defined by the size of contingency fees and quid pro quo “understandings” between trial lawyers and elected judges.
Remember the infamous words of renowned convict and former trial lawyer Dickie Scruggs in his heyday as one of the most prominent and successful manipulators of this system, prior to his conviction for attempted bribery of a judge (he just couldn’t leave well enough alone!):
“What I call the ‘magic jurisdiction,’ [is] where the judiciary is elected with verdict money. The trial lawyers have established relationships with the judges … and it’s almost impossible to get a fair trial if you’re a defendant in some of these places. … Any lawyer fresh out of law school can walk in there and win the case, so it doesn’t matter what the evidence or law is.”
If some of my preceding words appear a bit inflammatory, you can see that they simply reference what one of the (formerly) biggest name in tort law said himself in an unguarded moment of braggadocio. This clearly wasn’t a revelation to him – it was strategy. None of the following: “judiciary elected with verdict money”, “trial lawyers have established relationships with the judges”, “almost impossible to get a fair trial if you’re a defendant”, or “it doesn’t matter what the evidence or law is”, has anything to do with justice or fairness. They have everything to do with gaming the system to one party’s advantage to the disadvantage of the other party – fixing the game so we know who the winners and losers are in advance.
That isn’t justice, and it costs us all. Just as lottery winners are paid through the millions who purchase losing tickets, in judicial hellholes the winning plaintiffs gain their pound of flesh from the innocent citizens who go about their daily lives as does everyone else – just paying a premium for everything, including insurance, to cover the extra overhead that pays for the lawyers’ big houses, cars, TV ads, etc.
The ATRA annual report on Judicial Hellholes can be reached at http://www.judicialhellholes.org/wp-content/uploads/2010/12/JH2010.pdf.