ThePopTort

Confidential Memo on "Judicial Hellholes" from Insurance Industry!

Looked what was just leaked to us!

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CONFIDENTIAL MEMO

To: American Tort Reform Association

From: Property/Casualty Insurance Industry PR Hacks

Date: December 6, 2021

Re: Good luck tomorrow!

I hope you know that we value nothing more than our friends in the “tort reform” movement, like you, who share our goals: getting politicians and media outlets on our side, demeaning judges who rule against us, and passing laws that take power and authority away from juries. Our methods may be different than yours: we engineer the unjustifiable price-gouging of policyholders until they scream, you issue an inane repetitive yearly “judicial hellhole report” designed to cause screaming! (More about that below.) But as our goals are the same, we thought you might benefit from our recent experience trying to attack judges and juries during a pandemic - since it looks like you are officially releasing another one of these reports tomorrow.

We should start by being honest and telling you that those screaming about your report aren’t quite what we’d hoped, and have instead presented some real PR challenges for our movement. The severity of attacks by legal scholars and media outlets even took us by surprise! Targeting jurisdictions with poor and minority populations probably doesn’t help either (although we do that all the time so who are we to judge?). Also, attacking local judges and juries seems un-American and unpopular to a lot of people. So, while you were already on thin ice with this “study,” there is now a whole new context to consider: the pandemic. The civil justice system was dormant for many months and is only now slowly coming back to life. Jury trials stopped, are still not happening in many places, and injured people can’t get cases heard. In other words, this darn pandemic has just wreaked havoc on our PR messaging!

We know this from experience. Let us explain. A few months before the pandemic, we began suddenly raising insurance rates on businesses (as usual) despite sitting on mountains of cash (close to a trillion dollar surplus now). For forty years, we followed a standard playbook: 1. Suddenly raise rates on doctors and businesses so they go nuts; 2. Falsely tell them that lawsuits, juries, lawyers and victims are to blame even though there is never a spike in insurance claims or lawsuits; 3. Lie to politicians, saying enacting “tort reform” is the only way to bring down rates; 4. Get "tort reform" laws passed that take power away from juries. This worked every time.

But our old tricks aren’t working now. In 2019 and 2020, we dutifully created a new insurance crisis, trying to follow the same playbook. We even thought up a convenient new term to blame for our price-gouging. We called it “social inflation” - a term we haven’t given up on yet, by the way. We thought this was a perfect PR device, a term so vague it can be used for everything we hate: policyholders who go court, “aggressive” attorneys who represent them, and local juries. But one thing we didn’t anticipate: COVID. COVID shut down the courts. Complaining about too many lawsuits and “out of control” juries suddenly made us look silly. And without that kind of PR hook, no one was screaming for “tort reform.”

Things aren't getting much better. In fact, thanks to the pandemic, civil cases are now completely backlogged. Civil cases are being put at “the end of the line,” and they are piling up. Judges – and there are simply not enough of them - are trying to prevent jury trials altogether, often for the safety and economic concerns of potential jurors. They are pressuring settlements like never before. So believe it or not, sometimes we’re the ones pushing for jury trials now! (As one lawyer put it, “We are finding that liability insurers and defendants, most of the time, will not waive their right to a jury trial…”)

Now I’m not saying you won’t be able to bamboozle some, shall we say, “gullible” reporters and editors to pick up your spin. For example, just look at the awesome, highly misrepresentative headline by media outlets (like here here) reporting on a so-called “record breaking” Nebraska jury verdict for a negligently injured, permanently-disabled child. We all know the family will receive only a tiny fraction of this verdict because Nebraska has a severe cap on damages for injured patients including children – a cap the jury was not told about. But this fact was barely mentioned in the articles. Kudos to whatever PR operation hoodwinked some lazy reports and editors on this one! But the media isn’t as reliable for us as it used to be. Take, for example, the very popular podcast “You’re Wrong About That.” Here’s what they tweeted when they re-ran this year their episode on the McDonald’s Hot Coffee case. They’ve turned our entire PR fabrication about this case on its head, just like the 2011 HBO documentary film Hot Coffee. 

Whatever happens tomorrow, we’ll have your back don’t worry. We just feel bad that your role in our movement has been reduced to releasing tired, discredited messaging about judges and juries who rule against your corporate members when they kill and injure people. Perhaps it's time to reevaluate?

A Civil Justice Top 10 Thank You List

Here’s our Thanksgiving gift to you because sometimes things do go our way and we need to talk about that! Everyone feel better, and Happy Thanksgiving.

1. Congress quit “tort reform.” For 15 years, there has not been a serious “tort reform” effort in Congress. That’s when, in 2006, the last of seven bills to cap damages for medical malpractice victims was brought to the floor and decisively killed in the U.S. Senate even though the “tort reform” party controlled Congress, “tort reformer” in chief George W. Bush was President, and members of Congress were under enormous pressure to succumb to medical and insurance industry pressure. (Doctors had been suffering through four years of unnecessary price-gouging by medical malpractice insurers.) That happened because civil justice advocates effectively pushed back. While the U.S. House may pass bills now and then, they now arrive DOA in the Senate irrespective of who's in charge.

2. Judicial progress. Yes, the federal courts were decimated during the Trump/McConnell years. But the Biden/Schumer years have made much headway turning things around. Quoting our good friends at the Alliance for Justice, “President Biden has already seen more judges confirmed in his first year than the past five presidents, and he shows no signs of slowing down. With each slate, we see his continued commitment to bringing more professional and demographic diversity to our courts.”

3. Support for civil justice is bi-partisan. The “tort reform” movement finds itself no longer fighting just its traditional opponents - Democrats and progressives - as they had been for the first 30 years of the “tort reform” movement. They are now fighting people of their own political party and conservatives – and they are losing. Conservatives helped stop a bad class action bill and federal tort reform, and are now supporting a bi-partisan bill to ban forced arbitration clauses for sexual harassment cases. Who thought we’d ever see that?

4. Forced arbitration is backfiring. Speaking of forced arbitration, who saw this coming? As we wrote last July, “Amazon decided to give up its ‘forced arbitration’ requirement and allow itself to be sued in court. Why?  Because they were outsmarted. Specifically, rather than dropping claims, more than 75,000 Echo users, who were very angry that these Alexa devices were recording them without permission, filed for arbitration, hitting Amazon with a bill for ‘tens of millions of dollars in filing fees.’” Yet smart lawyering isn’t the only trigger for this development. Other big companies, like Google, have also dropped their forced arbitration clauses following major grassroots organizing. The company-by-company approach can’t replace Congress’ much need action on the FAIR Act, but the public education that has surrounded these developments can’t be overstated.

5. Unlikely courts have struck down caps. While not every state supreme court has struck down caps on damages, several surprising decisions have done so in conservative states and/or in states where courts had earlier ruled differently (e.g., Kansas, Oklahoma, Oregon). As a result, less than half the states (24) have laws that specifically cap non-economic damages in medical malpractice cases, which is the most popular kind of “tort reform” proposal. And only nine cap non-economic damages generally.

6. Research comes through. Often the insurance industry can bamboozle politicians despite the best efforts of civil justice advocates. (See what just happened in Louisiana.) But enough time has passed since many “tort reform” laws have been on the books, that credible, in-depth academic research about the impact of these laws is possible. And it’s showing “tort reform’s” failure at every level. That’s true even when it comes to the most common “talking point” in support of such laws: bringing down costs. Caps on damages, for example, cause system costs to actually increase, not decrease! See the book Medical Malpractice Litigation: How It Works, Why Tort Reform Hasn’t Helped, written by six top medical malpractice researchers, published by the conservative Cato Institute, no less. And let’s not forget survey-type research, like this one from one “tort reform” lobbying group. They say that for small businesses, the issue of “lawsuits” is of less importance than almost any issue small businesses could possibly face, or on which they want lawmakers to focus. 

7. New media is smarter. Gone are the days when press releases from manipulative industry PR operations with a lot of money, sent to traditional media outlets, become the only way people hear about civil justice issues. If you want to see how that used to happen, catch the documentary film Hot Coffee, which showed the destructive impact of that PR machine. But there is much more skepticism these days, and many more popular outlets want the truth. Take, for example, the very popular podcast “You’re Wrong About That,” which consistently ranks at the top of podcast episode and show lists. Here’s what they tweeted when they re-ran this year their episode on the McDonald’s Hot Coffee case which (like the film), debunks many anti-civil justice myths about this case: “This is by far our most requested episode! We're a little reluctant to do it simply because the ‘you're wrong about’ narrative is so well-known at this point. But maybe it's worth looking into anyway!” It's not the mid-1990s anymore.

8. Insurer price-gouging not working for them. Volcanic eruptions in insurance premiums for commercial customers (businesses, doctors) occurred the mid 1970s, again in the mid-1980s, and the early 2000s. While lawsuits had nothing to do with why premiums suddenly jumped, each time the industry responded by successfully pushing states to enact “tort reform” laws stripping victims of their legal rights. Now we are in the fourth such cycle. Insurance prices have been rising since 2019. But unlike in the past, today insurers have been unable to exploit their own mismanaged underwriting to push for similar “tort reform” laws. Why? Perhaps it’s because no one believes lawsuits caused insurance premiums to rise in a year when the civil courts and juries were essentially shut down. Or maybe it’s that the industry is sitting on a record-breaking trillion dollar surplus. Or maybe, people are just wising up to how this dishonest industry operates..

9. Law students emerge as a force. Law students have never been more politicized and active on civil justice, corporate accountability and court issues as they are now. People's Parity Project has emerged as a critical new voice on these issues, growing out of a movement at some of the top law schools in the nation. The [F]law is a new publication from Harvard Law School students, with a mission “to share stories that reveal how corporate law and power create social problems and systemic injustices.” And there’s been a huge jump in law school enrollment due to a number of factors including “continuation of what is called ‘the Trump bump’” and “what happened in 2020 — including the police killing of George Floyd and the racial justice movement that arose from it — spurred more applicants, she said, as did the death of Supreme Court Justice Ruth Bader Ginsburg and the confirmation of a controversial successor.” Can’t wait to see what these students do when they make it into the workforce.

10. Finally, we are thankful for everyone who pays attention to ThePopTort, the work of the Center for Justice & Democracy, and all the amazing advocates we work with. Have a very Happy Thanksgiving!

Where Have All the Juries Gone?

There’s an enlightening and engaging new article out from UC Berkeley School of Law’s Civil Justice Research Initiative, called The Civil Jury: Reviving an American Institution. Written by renowned jury and civil justice experts Valerie P. Hans of Cornell Law School, Bob Peck from the Center for Constitutional Litigation, and Richard L. Jolly of Southwestern Law School, the piece consolidates some of what we’ve known about the history and importance of this “pivotal institution,” and updates it all with recent information about the worsening anti-civil jury trends in today’s world. They also makes common sense suggestions about how to reverse this troublesome situation.

They write:

[L]egal, political, and practical attacks and challenges over time have hollowed the constitutional promise and role of the civil jury. As noted herein, these include:

• Procedural changes stripping juries of their fact-finding authority and empowering legislatures and judges in ways beyond their expertise and constitutional role

• Political and social elites, buoyed by moneyed interests, engaging in a decades-long campaign to denigrate the democratic role of juries in civil dispute resolution

• Recently, COVID-19’s unique constraints on the empaneling and use of civil juries, grinding trials essentially to a halt

Here’s the shocking result (footnotes omitted):

Starting in 1962, the year when federal judicial statistics become most reliable, a consistent decline has been readily apparent in the percent of civil cases disposed of by jury trial. That rate was 5.5% in 1962; 3.7% in 1972; 2.6% in 1982; 1.9% in 1992; 1.2% in 2002; 0.81% in 2012; and finally reaching its nadir of 0.48% in 2020. A similar pattern has been experienced in state courts. In those states that kept accurate statistics, between 1976 and 2002 civil jury trials fell threefold from 1.8% to 0.6% in courts of general jurisdiction. And the most recent data from the Court Statistics Project shows that of those reporting states in 2019, juries disposed of a median of only 0.09% of civil disputes. Simply put, civil jury trials are the very rare exception and not the rule.

Indeed, “The majority of civil disputes today are resolved not by laypeople serving as jurors but through private and publicly funded settlement and arbitration proceedings.” And as we know, arbitration as a method of resolving important disputes is generally not chosen by harmed consumers or workers, but is rather forced on them by the very companies that hurt them. (Here’s our most recent post about that.)

What we also found interesting was how the authors connect this to a far broader trend, i.e. attacks on our democratic system of government. Take note anyone who cares about our nation’s recent precipitous slide towards anti-democratic laws and institutions. They write,

Still, in this time when the future of American democracy is in greater peril than we have ever experienced in our lifetimes, which coincides with our slow emergence from the ravages of a life-changing and deadly pandemic, we cannot forget that jury service provides a form of public participation and grassroots governance that the Founders considered as important in maintaining a democratic republic as voting itself.

Also, take note anyone who is wary of centralized government and privileged classes, and believes in juries as the essence of local governing. No matter ones political perspective, it should seem dire that the “civil jury has fallen into disrepair and neglect, ceding authority reposed by the Constitution in the people to unrepresentative judges, legislative bodies with little regard for our system of justice, and private actors who have locked the courthouse doors.”

The article debunks many myths about civil juries and then proposes some reforms, “focused on removing barriers to jury access and enhancing fair and accurate jury fact-finding.” These reforms include:

• Eliminate legislation capping the jury’s damage-setting authority
• Expand the use of innovative procedural tracks, such as expedited jury trial projects
• Ensure that juries represent the communities from which they are drawn
• Require the use of twelve-person civil juries
• Adopt active jury reforms

 Given the breadth of support for the civil jury system from all sides of the political spectrum, these should be no-brainers.

Civil Juries: Crushed by COVID

There a Radiohead lyric that goes “Let down and hanging around; Crushed like a bug in the ground.” I know there are a lot of ways to describe what happened to the civil jury system this past year but for some reason, squishing a fallen insect comes to mind.

As many have written, insects are an incredibly important part of our ecosystem. The “the lever pullers of the world,” some say. Hardly a nuisance, and we’d be dead without them. 

Similarly, civil jury trials – especially those deciding cases by people who have been wrongfully harmed - are a crucial part of our justice system. The U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. (The Seventh Amendment eventually resolved the problem.) The right to jury trial has been secured not only by the U.S. Constitution, but by every state as well.  

But over life of the nation, the number of civil jury trials dropped precipitously. Even before the pandemic hit, for example, juries resolved, on average, less than 1 percent of state civil cases as well as state tort cases. The reasons for this, as described by Shari Seidman Diamond and Jessica M. Salerno in their 2020 law article, “Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges,” include both enactment of “tort reform” laws that limit the power and authority of juries, and forced arbitration clauses that demolish juries altogether:

For civil cases, 61.6% of respondents who practiced in jurisdictions with damage caps… said they played a medium or large role in making jury trials less appealing.…

Fifty-two percent of judges and attorneys also pointed to mandatory arbitration as having helped drive down the frequency of jury trials.

Many courts offer voluntary arbitration, overseen by a neutral mediator who is an expert in the pertinent legal issue. A growing number of companies have begun making this process mandatory for employees and consumers by including binding arbitration clauses in contracts.

“On average, workers who pursue legal claims through arbitration are less likely to prevail, and they receive smaller awards than those who pursue employment claims in court,” wrote Diamond and Salerno.

Already at a low point before COVID, now they’ve nearly or completely disappeared in many places. In an op ed in Maine’s Press Herald, Benjamin Gideon recently wrote:

When the pandemic struck last spring, Maine courts abruptly stopped conducting jury trials. It was an understandable measure to protect judges, litigants and jurors. At that time, no one yet knew how to adapt to the pandemic.

Less understandably, more than a year later, our civil justice system remains shuttered.…

Not only has our judiciary failed to implement strategies to resume civil (and for the most part, criminal) jury trials, our Supreme Judicial Court issued an order prohibiting trial judges from using their own ingenuity to find a way to conduct civil jury trials.

Now, as our courts are finally attempting to reopen, they face a dizzying backlog of criminal cases, which, the judiciary says, prevents them from holding civil jury trials. …

What’s more, insurance companies have done nothing but take advantage of this situation by refusing to settle cases. In New York, for example,  

Because there are no trials — except for a select few cases that went to trial last fall — insurance companies and defendants have little reason to settle beforehand, a common way to avoid juries awarding more money, lawyers say.

Insurance companies and defendants have instead dragged their feet and refused to pay out in some cases, which could force people to settle for less if they’re desperate for cash, according to lawyers in the field.

“The delay of jury trials brought on by COVID-19 has exacerbated what was already an untenable situation for New Yorkers seeking to exercise their right to civil justice,” said state Democratic Sen. Brian Benjamin.

As Mr. Gideon writes, “I am concerned that we will come to accept the misguided notion that the right to a civil jury trial is a luxury rather than a basic right established by our constitution.”  Yep, James Madison would be seriously bugged by that. 

How Civil Lawsuits Can Mitigate our Nation’s Crises

In nearly every state, as well as in Congress, proposals abound to limit the rights of Americans to use the civil justice system. The fundamental PR message of corporate and other special interests behind these proposals is that the civil justice system is somehow harmful to us as a nation, instead of something to be proud of. They use alarmist, prejudicial and unsubstantiated data to make their case, while we use scientific, objective and fully substantiated data to make ours. I think if we’ve learned anything over the last four years, it is that our approach is not only correct but also on the right side of history.

And today, we’ve got the receipts.

The Center for Justice & Democracy has a new study, called Lifesavers 2021: CJ&D’s Guide to Lawsuits that Protect Us All. The study describes over 125 lawsuits that have led to major health and safety improvements benefiting large numbers of people, spanning over 50 years. These cases have not only saved lives but also show us how to mitigate some of today’s most dire crises.

Take hate groups. The report describes a number of cases brought from the 1980s through the 2000s by the Southern Poverty Center, which accomplished what the criminal justice system could not: putting them out of businesses. The report notes, “Civil lawsuits by hate crime victims were used effectively to bankrupt several white supremacists and Nazi organizations, while also directly responding to the financial needs of victims.” While some groups may be operating differently today, civil liability remains an important tool that attorneys should explore.

Take COVID-19. Lifesavers includes cases recently brought against disease-ridden COVID-19 super-spreader establishments, resulting in safer workplaces. These cases have been necessary because many essential businesses and services, which have been operating throughout this pandemic, have not followed best practices and have endangered their own workforce and customers. Many have not been supportive of sick employees, forcing them to work, threatening dismissal unless they do and greatly contributing to infection-spread throughout the country. As with the dismantling of hate groups, lawsuits by workers – unusual as they may be –  are a critical safety tool that must be available. The corporate push for business and health care liability shields must stop.

Finally, take police brutality. The crises of police brutality and racial injustice in law enforcement cry out for solutions. One idea has emerged as a starting point: abolishing the doctrine of “qualified immunity.” Qualified immunity protects police officers from civil liability when they kill or injure someone using excessive force, brutality or other misconduct. Fortunately for victims and their families, qualified immunity does not prevent police departments from being held accountable. Many suits have been brought and resulted in important changes to policies and practices, including serving as a tool for police departments to identify and remedy potential widespread abuses. Lifesavers highlights many of these cases.

Our nation is not harmed when the rights of injured, sick and violated individuals are vindicated through the civil courts. We all benefit from civil justice and from the corresponding deterrence of unsafe or illegal misconduct. Over the last 40 years, the civil justice system has been battered. But as Lifesavers shows, after 245 years and just as the nation’s founders had hoped, the system still works.

Litigation Shouldn’t Be Necessary - But It Is, and Our Founders Knew It

Very few injured Americans file lawsuits. Granted it’s been awhile since anyone took an empirical look at the numbers, but when Rand’s Institute for Civil Justice did so 1991, researchers found that only 2 percent of injured Americans file lawsuits. The National Center for State Courts recently provided another perspective: “Tort cases garner a great deal of public interest but generally account for only about 4 percent of [state court] Civil caseloads….” 

It takes a lot for someone to bring a lawsuit. Those who do have good reason. Parents may need compensation for a catastrophically-injured child. Someone suffering discrimination or assault might seek justice because other systems have failed them. Others may sue to stop corporate or professional misconduct, to prevent others from suffering the same way. There are lots of possible reasons why people go to court, but the one underlying truth is that few injured people actually ever do it. And that’s even though more and more people are getting injured as corporate misconduct and professional negligence increase.  

Take healthcare, for example. Two stories this week explain two extremely disturbing new trends that scream out for legal accountability. First, according to a Bloomberg story titled “When Wall Street Took Over This Nursing Company, Profits Grew and Patients Suffered,”

Under the control of two prominent private-equity firms, Bain Capital LP and J.H. Whitney Capital Partners LLC, Aveanna [Healthcare] has left a trail of injury and death in some of the biggest states where it does business.…

At least seven children have died in Texas, Pennsylvania and Colorado. In these fatalities, reported over the past year, health officials found that Aveanna’s nurses failed to check vital signs, follow emergency procedures, appear for their shifts or give the proper doses of medicine.…

[I]nternal company documents reveal financial incentives that favor corporate growth and cost-cutting over clinical care. In interviews, more than a dozen former Aveanna employees described how the pressure to meet financial goals jeopardized the quality of care for children.

Second, in the Washington Post, a story ran titled, “Health-care system causing rampant burnout among doctors, nurses; As many as half of all clinicians suffer from the problem, creating risks to patients, malpractice claims and absenteeism, study finds.” The title says it all.

Of course, health care is far from the only problem area. For example, last week a “damning report” was released from a multiagency task force that heavily faulted the Federal Aviation Administration for actions that led to two Boeing crashes in five months, killing 346 people. They found, among other things, that the FAA “relied heavily on Boeing employees to vouch for the safety of the Max and lacked the ability to effectively analyze much of what Boeing did share about the new plane.”

The Center for Progressive Reform’s recent report, “Regulation as Social Justice,” discusses “four broad contributing factors that help explain the current weakened state of the U.S. regulatory system: weak and outdated laws; unnecessary implementation barriers facing agencies; excessive corporate influence; and obstacles to meaningful public participation.”

Some of the problem stems from the growth of dark corporate money into our democracy. Since the 1980s, corporate lobbyists, using a gross imbalance of advocacy resources, have made tremendous strides weakening safety laws and standards for prevention of harm and protection against hazards. If you suffer discrimination or are harmed by toxic air, leaded drinking water, unsafe products, dangerous workplaces, or cheating banks, you likely lack the wealth or power to meaningfully participate in the legislative or executive branches of government to correct those problems or get some relief.

So it’s left to the third branch, the courts. The courts have and continue to provide a check on official or arbitrary misuse of power, corporate abuses, violations of civil liberties and civil rights and even the actions of violent criminals when, as often happens, the criminal justice system fails victims. (See, e.g., Center for Justice & Democracy studies such as Lifesavers, a Guide to Lawsuits that Protect Us All; First Class Relief, How Class Actions Benefit Those Who Are Injured, Defrauded and Violated; and, The Importance of Civil Justice to Sexual Assault Survivors and the Devastating Consequences of Tort Reform.

Because money and politics dominate the executive and legislative branches, we end up seeing stories like today’s, “Consumer Class Actions Nearly Tripled in the Past Decade” … “with cases over data privacy and unwanted text messages behind the increase.” As Laura Hopkins, a legal data expert at Lex Machina, put it, “You could classify that as more catastrophic events are happening to a large group of people.” In fact, access to the courts may be more important today than ever, with regulatory oversight of bad corporate actors or corporate practices virtually ground to a halt in many areas.

As the CJ&D reports (mentioned above) show, lawsuits have led to changes in the design and manufacture of automobiles, defective firearms, aircraft, consumer products, drugs and medical devices too many to name, particularly those designed for women, hospital and medical procedures, swimming pool drains, chain saws, tractors, lawn punch presses. Lawsuits have bankrupted hate groups, exposed police and other official misconduct, improved public and workplace safety.

Lawsuits have also exposed and held accountable entire industries engaged in massive corporate crimes and coverups, with tobacco being one well-known example but also product liability litigation that exposed a lethal 50-year coverup by the asbestos industry that led to millions of deaths. Some have equated what the asbestos industry did to mass murder. And as we recently reported, the ongoing opioid litigation is another example where courts have stepped in to hold accountable an industry that profited from knowingly fraudulent and dangerous marketing and sales activities resulting in a public health crisis with which we are all familiar.

It’s not surprising, then, that corporations that may have blocked regulatory oversight only to be forced to change their practices because of lawsuits, are constantly attacking judges and juries that rule for victims and plaintiffs. This strategy has been part of the so-called ”tort reform” movement since at least the 1980s. But there are reasons why they will not and should not succeed. Unlike other, weaker democracies which have abolished the civil jury, the jury's roots are deeper here. The American colonists fought the Revolutionary War in significant part over England's repeated attempts to restrict jury trials. The U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. (The Seventh Amendment eventually resolved the problem.)

As the late U.S. Supreme Court Chief Justice William H. Rehnquist once put it, “The right of trial by jury in civil cases at common law is fundamental to our history and jurisprudence.... A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded....” 

And that’s true whether or not we ever go to court.

Juries: The Pendulum Swings Back

It wasn’t too long ago – 2 and a half years to be exact - that we analogized what seemed to be growing disrespect for civil jurors, to a Rodney Dangerfield routine.  (“People who serve on civil juries can’t get no respect from anyone this week,” we exclaimed.) But lately it’s been a bit of a different story.

On June 14, the Kansas Supreme Court did something both extraordinary and something it should have done a long time ago: provide real meaning to Section 5 of the Kansas Bill of Rights, which states, “The right of trial by jury shall be inviolate.” 

You see, back in the 1980s, Kansas politicians took a direct swipe at Section 5 by severely and broadly capping non-economic damages for injury victims. Non-economic damages are for very real injuries, such as brain damage, loss of limb, loss of reproductive ability, blindness, and other kinds of suffering and lost quality of life. Caps on compensation apply regardless of what jurors, who make decisions based on evidence they hear in a case, say compensation should be.

And in 2012, the Kansas Supreme Court decided Section 5's authors didn’t really mean “inviolate.” Instead, it “transform[ed] what the people made inviolate into something violable at will” and upheld the cap even though it directly infringed on the power and authority of juries to decide cases. This decision made no sense to many – and now, it appears, it also made no sense to the 2019 Kansas Supreme Court. So joining perhaps another unexpected court decision striking down Oklahoma’s equally-problematic cap in April, the Kansas court struck down the Kansas cap in June. 

As a result of these two 2019 decisions, less than half the states (24) now cap non-economic damages in medical malpractice cases. And only nine cap non-economic damages generally. The momentum is definitely in the “no-cap” direction. 

We’re so glad that judges are weighing-in on the correct side of this issue. It should be known that judges, who have more intimate knowledge of the system than anyone, generally have a high level of day-to-day confidence in civil juries. This year, the National Judicial College asked judges “About how often do you disagree with the jury’s verdict?” Among the findings from the just released survey:

Eighty-two percent of the 446 judges who responded said they disagree less than 25 percent of the time. The majority who left comments said the jury usually gets it right, and it is not a judge’s job to second guess their decision.”

Wrote one judge (anonymously, as was most often the case with the comments): “When you hear the voice of a dozen people speak in unison, it is rare that they get it wrong.”

Juries rule, as they say. And as they should.

Law Day: Out of the Mouths of Jurors

Many judges and scholars have written eloquently in defense of the civil jury, warning against even limited intrusions into the right to civil jury trial. Take the late conservative Supreme Court Chief Justice William H. Rehnquist, who once wrote, “The right of trial by jury in civil cases at common law is fundamental to our history and jurisprudence....  A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded....” 

So true. Yet some of the most powerful sentiments about civil juries come not from judges or scholars, but from jurors themselves. Jurors are just ordinary people randomly chosen from the community, making decisions about society’s tolerance (or intolerance) for certain types of behavior, deliberating and rendering verdicts, and then fading anonymously back into the community. It’s an incredible system.

Despite being enshrined in the Seventh Amendment to the U.S. Constitution and nearly every state constitution, the civil jury system has been under siege for several decades now. The power and authority of civil jurors, who cannot be bought-off by special interests, represent a tremendous threat to the power structure in this country. Today, between so-called “tort reform” laws in most states, the recent proliferation of forced arbitration, and the dramatic decrease in civil jury trials, the entire system is on shaky ground. So what to do?

Here's one thing we might try. In all the political fighting around these issues, sometimes we forget to listen to those at the core of this debate - jurors themselves. Why do civil juries do what they do, and how do they feel when their power is taken away? There are two main reasons juries render verdicts for plaintiffs. One is to provide fair and adequate compensation to the injured.  Second is to hold wrongdoers accountable. Here are just a few examples – in their own words.

Compensation to the injured

1. The case of James Todd Beason 

James Todd Beason, an Texas oilfield worker, was severely injured when a crane fell on him, leading to two amputations on his left arm. He now “lives daily with severe nerve pain and has several other health complications as a result.” When he sued the company in Oklahoma, he and his wife were awarded $9 million in economic damages and $6 million in noneconomic damages. Little did the jury know, however (because they were not told), that Oklahoma’s state lawmakers had capped noneconomic damages at $350,000. So the judge was forced to drastically reduce this verdict.

As recently reported in Tulsa World,

Beason said he will never forget the reaction of the jury when they were told about the cap.

“Grown men and women came outside and were in tears,” he said. “I remember a gentleman came up and he was bawling. He was crying. He said, ‘We thought we were doing the right thing. We thought we were taking care of you and your family.’”

Fortunately, the Oklahoma Supreme Court was listening, and just recently invalidated the $350,000 cap, finding it unconstitutional.  Chalk one up for those jurors!

2. The case of Stephen Olsen

Steven Olsen is blind and brain damaged because, as a jury ruled, he was a victim of medical malpractice when he was two years old.  He fell on a stick in the woods while hiking. The family’s HMO refused to do an $800 CAT scan, which would have detected a growing brain mass caused by the stick.  

When they sued the HMO, a jury awarded $7.1 million in noneconomic damages for Steven’s avoidable life of suffering. But the judge was forced to cut this award to $250,000, the amount of California’s noneconomic compensation cap. This outraged the jury. Jury foreman Thomas Kearns then wrote a letter published in the San Diego Union Tribune, in which he described how they had reached their verdict:

“We viewed video of Steven, age 2, shortly before the accident. This beautiful child talked and shrieked with laughter as any other child at play. Later, Steven was brought to the court and we watched as he groped, stumbled and felt his way along the front of the jury box.  There was no chatter or happy laughter.  Steven is doomed to a life of darkness, loneliness and pain. He is blind, brain damaged and physically retarded.  He will never play sports, work, or enjoy normal relationships with his peers.  His will be a lifetime of treatment, therapy, prosthesis fitting and supervision around the clock.”

This anti-jury cap is still the law in California.

Accountability

1. Whirlpool

Some years ago, an Alabama jury reached a $581 million verdict against Whirlpool, which had dealers all over the state soliciting — door-to-door — poor, unsophisticated and elderly customers to purchase satellite-TV dishes for $1,100 plus 22 percent interest.  The same equipment could be bought at an electronics store for $199, amounting to an effective interest rate of 300 percent.  One witness who was sold a satellite dish was legally blind. Another had less than a 5th grade education.  A former agent who later quit testified that Whirlpool specifically targeted illiterate and unsophisticated people, and that he had trained others to lie about the terms of the financing which included a deceptive credit card scheme.

Why $581 million? A juror who spoke to one of the lawyers in the case said that the jury was “sick” at how Whirlpool treated poor, uneducated people, misrepresenting to them from the very start.  The juror also said the jury was “inflamed” that there were still “thousands of people out there” who were victims of the scheme, but that Whirlpool had not helped those people.  They felt their verdict was important “to get their Whirlpool’s attention.”  (See more here.)

The verdict was eventually cut nearly in half – to $300 million – and the parties later settled for an undisclosed sum. Within a couple weeks of that case the Alabama legislature passed a law capping punitive damages.

2. McDonald’s Coffee Case.

In the documentary film, Hot Coffee, which tells the story of the often unfairly-maligned McDonald’s coffee case, two jurors described why the jury decided to hit the company with $2.7 million in punitive damages (later reduced by the judge). An article in Reader’s Digest explains:

The trial revealed that [plaintiff Stella] Liebeck was not alone. McDonald’s had received more than 700 complaints about burns from hot beverages over the previous ten-year period.… “There was a person behind every number, and I don’t think the corporation was attaching enough importance to that,” juror Betty Farnham told the Wall Street Journal.

After seven days of testimony and four hours of deliberation, the jurors sided with Liebeck. They awarded her $200,000 in compensatory damages. But because she caused the spill, they reduced the amount to $160,000. The jurors then awarded her $2.7 million in punitive damages, which, they reasoned, was equivalent to about two days’ worth of McDonald’s coffee sales. The total was $2,735,000 more than Liebeck’s lawsuit had requested.

“The only way you can get the attention of a big company [is] to make punitive damages against them,” said juror Marjorie Getman. “And we thought this was a very small punitive damage.”

Jurors are understandably angry when they find out that their efforts to be fair and just are cheapened and devalued.  As we celebrate Law Day today, it is important to be aware that we are reaching a new level of disrespect for the civil jury system in this country. The nation’s founders would clearly be angry too.

Forced Arbitration: Frontier Justice in America’s Legal System

Next time you’re talking to a corporate CEO, ask them this: Suppose the company found itself in court for one reason or another.  The judge had no legal training. The process had no real rules. The judge was neither required to follow law nor issue a written legal opinion. Once the judge ruled, their decision was enforceable with the full weight of the law even though it might be legally incorrect. And it all happened in secret. No legal precedent could ever be established to guide the company’s – or any other company’s – future conduct. Would you consider this a system that promotes legal predictability and certainty for businesses, or not?

I think we all know the answer. Yet what I just described are critical elements of “forced arbitration.” We usually talk about forced arbitration as a corporate-designed private, secretive process of dispute resolution rigged against consumers, employees, and small businesses. But for corporations who must rely on a strong, stable civil justice system for guidance on how to act, it’s unpredictable, uncertain, and mostly useless. And that’s exactly the point Rep. Katie Porter made in her questioning last week of the U.S. Chamber of Commerce’s Tom Quaadman, at a U.S. House hearing called, “Putting Investors First: Reviewing Proposals to Hold Executives Accountable.”

The context of her questioning was the concern that the Securities and Exchange Commission might be willing to succumb to extremist pressure and, for the first time, allow public companies to force defrauded investors into private arbitration to resolve securities disputes. Such a process would not only harm investors, but also would undermine “the crucial role shareholder lawsuits play in deterring financial fraud and protecting the integrity of U.S. capital markets.” 

Getting directly at the arbitration problems described above, Rep. Porter asked Mr. Quaadman, “Do you think the certainty of law is important to companies?” and “Is legal uncertainty positive?” Immediately he knew where she was going. As she tried to nail him, he did his best to slither out of it, ultimately pivoting the discussion to a completely different system, called FINRA (the Financial Industry Regulatory Authority). She wasn’t asking about FINRA. FINRA rules would not apply to shareholder arbitration. But she let it go.  

Huge props to her, however, for starting this conversation. Clarity. Predictability. Certainty. These are recurrent themes coursing through the business community’s arguments for “tort reform.” “Business certainty” is the reason states cap punitive damages and enact a myriad of liability limits. It’s the reason Congress sometimes considers federalizing state tort laws. It’s the reason corporate groups seek to establish uniform legal standards, curtail federal agency power, preempt state tort remedies, or otherwise block plaintiffs’ access to the courts. Corporations make this argument to legislators. They argue it to judges. They argue it to federal agencies. No branch or level of government has been exempt.

Please, take their word for it:

• Sponsors of 2011 Tennessee legislation capping damages: “This new law will provide certainty and predictability for businesses.”
• The American Legislative Exchange Council’s Civil Justice Task Force:  [We] are at the fore-front of efforts to restore fairness and predictability to state civil justice systems … that treats defendants in a consistent manner.”
• U.S. Chamber of Commerce: “[A]bsence of uniformity [in the law] creates damaging uncertainty for businesses in this sector.… [U]ncertainty about the scope of a federal statute has harmful consequences for any national business whose conduct is regulated by that statute.” 
• National Association of Manufacturers: State tort claims should be preempted because they subject businesses to “uncertain, unpredictable” liability. 
• U.S. Chamber of Commerce and the National Association of Manufacturers: Venue and personal jurisdiction rules “give[] a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.…" This “[p]redictability is valuable to corporations making business and investment decisions.”
• Coalition to Save Local Businesses (U.S. Chamber of Commerce, the National Retail Federation, and the International Franchise Association): Expanding liability under labor laws “would cause uncertainty for businesses.”
• National Small Business Association: State by state products liability laws “create uncertainty for businesses selling in a national marketplace.”
• George Mason University School of Law: Competition is harmed “[i]f businesses are unsure about where the line between legal and illegal behavior is drawn.”

Even when it comes to investor protection, they make the argument.  Here’s the U.S. Chamber, again: To foreign investors, the legal system can be “a source of significant investor uncertainty” and “international investors are not alone in that concern. It is a concern that is shared by U.S. businesses in general.” And while we generally agree with none of that, one thing is clearly true: the last thing the U.S. Chamber should support now is a legal system for investors that’s secret, with no trained judges, no rules, no record, no decisions with any precedential value and which actually might be legally wrong, and provide basically nothing to help companies establish what’s legal and what’s not. 

Big business lobbyists like to complain about the unpredictability of jury awards even though data show them to be generally consistent and conservative. But when it comes to unqualified legal uncertainty for defendants, forced arbitration wins that contest by orders of magnitude. It’s about as uncertain, unpredictable and unclear as a legal system could be.  

It's Tamper Time!

Big corporations that harm people but don’t want to be held accountable, are nothing if not creative. Lobbying for laws that take power and authority away from civil juries, check. Buying judges, check. Forcing disputes into secretive systems that they control, check. Trying to convince everyday Americans that stripping away their constitutional rights is a good thing, check. (I would cite some earlier PopTorts as evidence of this but we’d be here all day.)

But if the goal is to flip the legal playing field so dramatically in their favor so they never lose a case, why stop there?  There is tampering to be done!

In Dallas, U.S. District Judge Ed Kinkeade is bringing in the U.S. Attorney’s Office and the FBI to investigate after plaintiff attorney Mark Lanier “raised concerns Monday about possible witness tampering” by Johnson & Johnson subsidiary DePuy Orthopaedics. According to law.com:

The issue came up after orthopedic surgeon Dr. David Shein filed an affidavit in Alicea v. DePuy Orthopaedics Sunday night alleging that a DePuy Orthopaedics Inc. sales representative told him during a surgery-related conversation at his hospital in the Bronx on Oct. 13 that “there could be ramifications” for the doctor’s medical practice in connection with his upcoming Dallas testimony.

Shein said in the affidavit that the sales rep complained to him that the lawyers were “peppering him” and the “business in Dallas was freaking [him] out.” Shein said in the affidavit that the sales rep told him DePuy lawyers had contacted him on Oct. 12 and that the conversation made him anxious.

“He said the lawyers were ‘on him like crazy.’ They were putting ‘big time pressure’ on him,” Shein wrote in the affidavit about his conversation with the sales rep.

DePuy’s defense team (which apparently includes U.S. Chamber of Commerce lawyer John Beisner, a partner at Skadden Arps in Washington, D.C.) denies all this – but then asked for a gag order. Which the judge denied.

This story reminds me of a recent fascinating academic article about corporate influence over jury pools, called “Buying the Verdict.”  The researchers:

document strong evidence that firms systematically increase specialized, locally targeted advertising following the firm being taken to trial in a given location - precisely following initiation of the suit. … Moreover, firms concentrate these strategic increases in locations where the return on their advertising dollars are largest: in smaller, more concentrated advertising markets where fewer competitor firms are advertising. They focus their advertisement spikes specifically toward jury trials, and in fact specifically toward the most likely jury pool. Lastly, we find that the prevalence and intensity of this behavior is increasing over time.

This seems similar to what insurance companies used to do in the 1970s and 1980, when they ran ads with false information meant to influence jury pools to rule against plaintiffs or to lower verdicts.  At least one court considered these ads "jury tampering."

Specifically, in the 1978 case Quinn v. Aetna Life and Casualty Co., the New York Supreme Court said these ads "violate[d] the state public policy against jury tampering, unduly burden[ed] plaintiffs' right to an impartial jury, and distort[ed] the trial process by providing otherwise inadmissible insurance evidence..." Moreover, because the ads contained so many inaccuracies, two companies - Crum and Foster and Aetna - were forced to sign consent orders with state insurance commissioners in Connecticut and Kansas, agreeing to stop publishing these ads. (Kronzer, “Jury Tampering – 1978 Style,” 10 St. Mary’s L.J. 399 (1979) at 400, n. 9.)

The great Taoist philosopher Lao Tzu once said: never take over the world to tamper with it. Those who want to tamper with it are not fit to take over the world.  Somehow, this seems awfully fitting.