Sunday, December 16, 2007

Judicial Hellhole? Maybe Not.

For years, certain business interests have wailed that West Virginia's civil justice system is so completely messed up, so completely skewed in favor of frivolous plaintiff's lawsuits, that the state is a "judicial hellhole" (or "tort hell" - take your pick). Such suits drive away business and generally lead to the state's chronic economic woes.

It's a great story, except that it's probably not true. The argument against the "hellhole" label got a boost this week with the publishing of a study by two WVU professors which reveals that the overwhelming majority of WV trial judges - who would be on the front lines in this hellhole - don't see it:

The vast majority of circuit court judges — 77 percent — responded that there had not been an 'explosion of frivolous litigation,' Brisbin and Kilwein report. About one in five answered that there had been a slight increase in frivolous litigation.

Also, when asked to identify the greatest problem confronting the state’s courts, none of the 66 circuit judges named frivolous civil lawsuits, the study states.

The annual statewide personal-liability caseload has declined, suggesting that the courts are not being overwhelmed by tort cases, the study notes.
So why do the folks decrying the legal climate get it so wrong?
The authors also call into question the methods of various studies that have portrayed the state’s judicial system in a negative light.

'Business interest groups and the media produce stories about abusive litigation that neglect important contradictory information, rely on erroneous information, make assumptions based on inaccurate anecdotes, or use inadequate evidence and slogans generated by the ‘research’ arms of interest groups who neglect normal standards and practices of empirical social scientific inquiry,' the study states.
In my experience, when someone bemoans "frivolous" lawsuits, what they really mean are "lawsuits I don't like," in much the same way that "judicial activism" really means "I think the court got it wrong." It's an epithet, not a descriptive term, so it's only natural that folks deploying the epithet would show some selection bias in their analysis of the facts.


Buzzardbilly said...

Thank you for posting this. In the course of one of my old jobs, I had to do research on this very subject and I was appalled at the way these "fight lawsuit abuse" groups were clearly making mountains out of molehills in the name of being sure that companies who don't take the safety of others into consideration will have less of a responsibility to do so.

They use isolated stories that have been in the national papers to get people here to change our court system. There have been no big "you burned yourself on your own coffee" payouts in West Virginia.

Add that wretched Massey-backed Benjamin campaign "for the children" that the voters fell for, and the whole stinking "give up your rights for your own good" movement reeks to me.

Anonymous said...

It all depends on what you consider as "frivolous" or your definition thereof. I have been a litigation claims examiner for over 15 years and I can assure you most plaintiffs or their attorneys believe their claims are not frivilous and generally worth a lot of money, regardless of the circumstances and facts.