The State Journal, April 8, 2004
West Virginia is tort hell. West Virginia's judiciary is too political. West Virginia's highest court has an anti-business majority. The indictments against West Virginia's court system have been mounting for years, particularly in light of the civil justice reform effort pushed by pro-business groups.
But are the charges accurate?
Does the state have "jackpot justice" and a court structure that is out of step with the rest of the country? Or is the state of West Virginia's judiciary being skewed by a lobbying effort that takes advantage of the fact that one-third of state government is far more esoteric than the others, leaving the public largely unaware of what happens inside and out of the courtroom?
"We have survived and done well as a nation because we settle our differences in the courtroom instead of on the street. People have forgotten how valuable that is as a civilized society," said Marvin Masters, president of the West Virginia Trial Lawyers Association. "There is no better system. If you ask me, I think we have one of the best civil justice systems in the country."
The West Virginia Chamber of Commerce does not view the state's judicial system as kindly. The chamber takes particular exception to the Supreme Court of Appeals, which the chamber accuses of having an anti-business agenda. "This court has issued more out-of-step decisions than I can remember since I began practicing law 30 years ago," said Brenda Nichols Harper, vice president and general counsel at the state chamber.
Some academics believe the Supreme Court is not the problem, if indeed West Virginia even has a problem with its judiciary.
"Most people evaluate the Supreme Court based on just one or two cases, and that's grossly unfair," said Dr. Richard Brisbin, a political science professor and Benedum Distinguished Scholar at West Virginia University. "In general, what we're finding is that the real decisions that affect business are made by the Legislature. If people view the Supreme Court as anti-business, they need to start with the Legislature."
The Supreme Court is an easy target. It administers the entire judicial system and also serves as the final arbiter in state legal disputes.
A retired justice, Thomas McHugh, believes that high level of control invites much of the criticism heaped upon the five justices. "Whenever you get centralized power, you get more criticism," McHugh said. The elevated criticism of the past four or five years, in a way, is the culmination of a heightened awareness of the court system since it was placed in control of the judicial branch with the 1974 Judicial Reorganization Amendment, he said.
But Harper points to the court's record from the past few years as a reason to criticize the justices. The chamber has analyzed workers' compensation cases since 1999, and Harper said the number of opinions issued in favor of the claimant spiked in the spring 2001 term, the first term for Justice Joseph Albright, who was elected in 2000 but had been appointed to fill an unexpired term in September 1995, ending in December 1996.
"You can literally see it change when he joined the court," Harper said.
Dependents of claimants also fared better at the Supreme Court once Albright came aboard, she continued. The chamber analysis indicates more permanent total disability awards were being granted, beginning in fall 2000, and the awards continue generally to trend upward, while the number of awards reversed by the Supreme Court decrease.
Albright said he doesn't know anything about the chamber's statistics. "They could be right or wrong," he said. "I do know that the future is likely different, because we now have a different standard of review."
The chamber's analysis is too limited in scope for Brisbin to consider it adequate trending data. "This Supreme Court issues 250 or so opinions a year. Study all of them for 10 years, and that might begin to give you a trend," he said.
Albright said the Supreme Court should be viewed as an institution that develops and moves with society. "You have to view the court over a long period of time. It's totally inappropriate to consider the court in a vacuum. I think if you look at the court over the past 30 years, you'll see a seamless garment. You won't see much sticking out."
McHugh said he does not engage in debates on whether the current Supreme Court deserves criticism for its rulings or behavior. "My primary concern is to have the dignity of the court preserved," he said. "I think the court has been thrown into a political process, whether it chose to or not, and I think that adds to the volume of words directed toward the court or any judge."
As critical as many court-watchers were off-the-record, The State Journal found few sources willing to go public with their opinions of the judiciary. Harper said the fear of reprisal, or retaliation," is a legitimate fear of anyone who practices law or anything else."
"When your firm represents a client in a broad-based area, the opportunity for a punitive reaction is more broad-based, but I don't think that's unique to West Virginia," she said.
Tom Tinder, executive director of the West Virginia State Bar, said lawyers are restricted by their code of professional conduct in what they can say openly about the court. "You should not make inappropriate or intemperate comments about the court system or individual judges," Tinder said.
Judges are not free from criticism, he said, it just has to be voiced in the appropriate manner. "There are ways a lawyer can express his disapproval, such as by appealing a verdict or filing a motion to recuse a judge from a case. I would say that every day lawyers take action to demonstrate they don't like decisions made by judges."
Ohio County Circuit Judge Arthur M. Recht, a former Supreme Court justice, disputes that a "culture of fear" even exists between lawyers and judges.
"As a judge, the only issue you have before you is the case. You don't have time to worry about who said what in the press or otherwise," Recht said.
Some studies on civil justice systems in the U.S. point to West Virginia as a leading state for lawsuits. The American Tort Reform Association's designation of West Virginia as a "judicial hellhole" resonates loudly with the U.S. Chamber of Commerce, which has ranked West Virginia's civil justice system 49th in the country.
Henry Jernigan, past president of the Defense Trial Counsel of West Virginia, worked in Kentucky for a decade before returning to West Virginia in 1996. He now is managing partner at the Charleston office of Dinsmore & Shohl, the largest law firm with a presence in West Virginia and offices in five states. "West Virginia is simply more litigious. ... It is just a fact that West Virginians appear to resolve their conflicts in litigation rather than some other means," Jernigan said. "Of the regions we're in, the litigation is much more vibrant here in West Virginia."
Brisbin said West Virginia's industrial heritage lends itself to litigiousness. "There is a tendency to generate more injury lawsuits here," Brisbin said.
Masters disagrees, stating that West Virginians are not lawsuit happy and juries do not simply hand out awards. "What is not being pointed out is that civil justice filings have gone down 10 percent," he said. "All the statistics show declining numbers."
And some counties stereotyped as tort havens for trial lawyers don't necessarily deserve the moniker, according to Sen. Jeff Kessler, D-Marshall, an attorney in Marshall County, which he said has been considered a litigious county for a long time.
"It's simply not true. I had my staff do some research. In all of 2003, four cases went to trial, and two of them had defense verdicts. One case was settled at trial, and in the one plaintiff verdict, the award was for $6,000," Kessler said.
Brisbin pointed out that the business community would rather not have to face any lawsuits. "Companies gripe that it's too easy to sue," he said. "The rub here in West Virginia is that juries ... are less inclined to support business, and there is an anti-out-of-state interest among the population in this state. ... The judiciary is inclined the same way, since they represent the people," Brisbin said.
Masters said national measuring sticks such as the U.S. Chamber's give the public a skewed version of the judiciary.
"When you do a study like that, who do you poll? The chamber study only polled corporate attorneys. They called 928 senior attorneys at companies with annual revenues of at least $100 million. Forty-four percent of those interviewed came from companies with at least $1 billion in revenue or more," Masters said. "If you go around the country and see what they're (the chamber) saying, they are ranking them low where they want to change the law."
Masters and Kessler both said the chamber should be spending time marketing West Virginia's assets, not scaring the public by promoting slanted surveys.
Jernigan said regardless of whether a particular survey has a pro- or anti-business slant, West Virginians should be alarmed that their state ranks at or near the bottom of so many judicial surveys.
"This tells you that people who make business decisions, people who could be creating jobs, are going to be wary about coming into West Virginia," Jernigan said. "They may be willing to go to the 25th state, but they are going to avoid those states that are at the bottom of every survey, especially when they could go 50 miles and be across West Virginia state lines and still be in the same part of the country."
He said the one group in West Virginia that has done well economically over the past 10 years is the legal community. "I'll leave it to others to decide if that means the economy of West Virginia is well or not," he said.
Michael Basile, a Charleston attorney and chairman of West Virginia: A Vision Shared, believes the state's courts are having an effect on business development in the Mountain State. "Our courts, viewed as a whole, do diminish the ability of private sector business in West Virginia to compete in the global marketplace," Basile said. "I believe that this harm is exacted by certain jurists who, with the best of intentions, have the short-term interests of the individual litigants in mind when rendering rulings.
"The unintended, yet inarguable, effect of this approach is that West Virginia's business environment becomes less attractive to those who employ all of us. Reduced to simple terms, it is a classic trade between short-term and long-term gratification. "If we eat what we crave whenever we crave it, the waistline inevitably suffers.... If courts feed us, as individuals, the economic equivalent of Oreos, we, as a state, will not be fit enough to effectively compete in the race," he said.
The state must learn to compete in an ever-changing global business environment, Basile added. If the judicial system is contributing in any way to West Virginia's inability to attract business investment, it deserves serious attention.