Op-Ed: Sherman Joyce

W.Va. court system;
Some judges hurting citizens by issuing unfair decision

The Charleston Gazette, December 20, 2003

As I  travel the country representing the American Tort Reform Association, I have the opportunity to hear about how our civil justice system functions in many different jurisdictions. I hear the good, the bad and the nearly unbelievable.

In an attempt to uncover what it is that causes certain court jurisdictions to become notorious among legal experts, ATRA has for the past two years conducted a national survey to document the most egregious “Judicial Hellholes,” where repeatedly the law is being applied unfairly (available on our Web site — www.atra.org).

The extralegal activity that occurs in these jurisdictions results in lawsuit abuse that costs consumers, compromises access to affordable health care, and acts as a drag on economic development and job production.

Unfortunately, this is the second year in a row that West Virginia has been singled out in the report, with Kanawha County and the Northern Panhandle cited as particularly problematic in 2003. Last week, I traveled to Wheeling to launch a campaign to shine a public spotlight on the egregious behavior we uncovered in West Virginia’s courts.

How did West Virginia earn this dubious distinction? One reason is the legal “shortcuts” that have been created by some judges that sidestep due process. A classic example is recent asbestos litigation that has pitted unimpaired plaintiffs against truly sick plaintiffs in a lawsuit lottery that has made personal-injury lawyers into millionaires while depriving truly sick asbestos victims of needed court awards.

The “creativity” and profitability of the rulings in some parts of the Northern Panhandle have made these counties favorite destinations of plaintiffs’ lawyers looking to win a large verdict or settlement and get a ruling that sets a questionable precedent that makes it easier to sue for big money in the future. West Virginia’s own Attorney General Darrell McGraw is taking advantage of these Hellholes by filing an investment banking case up in Marshall County, although the case originated in the state capital, over two and a half hours away.

Nationally famous personal-injury lawyers such as Richard “Dickie” Scruggs acknowledge that justice is hard to find in Hellhole jurisdictions such as those found in West Virginia. Scruggs describes these “magic jurisdictions” where “the judiciary is elected with verdict money. The trial lawyers have established relationships with the judges that are elected. ... It’s almost impossible to get a fair trial if you’re a defendant in these places.”

Couple the questionable justice of these jurisdictions with a state Supreme Court that has drawn national attention for its outside-the-norm rulings, and one begins to understand why litigation activity has increased 53.6 percent more rapidly in West Virginia than in the nation as a whole over the past 10 years, according to one recent economic report.

One such example is the opinion written by Justice Warren McGraw that allows lawsuits based on fear of injury rather than facts. These kinds of extralegal rulings have a ripple effect on our nation’s entire legal system by expanding the limits of liability and effectively creating national policy.

We are not the only ones calling foul on West Virginia’s court system. The Defense Trial Counsel of West Virginia, an organization representing more than 400 attorneys in the state who primarily defend cases, recently released a report that highlighted abuses of the state’s court system, especially actions that have been taken by your Supreme Court. It is truly courageous for a group of defense lawyers to be critical of the system they benefit from financially, and they should be commended for promoting the public interest of every West Virginian.

Clearly, something is rotten in West Virginia’s legal system, but why should West Virginians care? The answer is simple. Each of you is paying for it. A court system that encourages lawsuit abuse affects the pocketbook of every West Virginian. The civil justice system costs each citizen $809 annually, amounting to more than $3,200 for an average family of four. Having an unreliable legal climate drives away businesses that supply good jobs and much-needed tax revenue for the state. West Virginia consumers pay more, their access to affordable health care is at risk, and the state economy suffers.

While some progress has been made in fixing West Virginia’s legal system, more needs to be done. The nation’s economy is beginning to make headway, and West Virginia deserves to benefit as much as any other state in the nation. Now is the time for West Virginia to pursue new business and bring jobs back to the state, but it will be at a disadvantage as long as it is burdened by capricious courts and lawsuit abuse.

The bedrock of our nation’s legal system is equal justice under the law. All citizens benefit when fairness and the rule of law take precedence over politics, special interests and favoritism.

Joyce is president of the American Tort Reform Association, on the Web at www.atra.org.