Judicial hellholes and legislating fairness

I haven't been able to post the last couple of days because I have been involved in a jury trial in St. Charles County. It was a civil case and I represented the defendant. While catching up on the news I ran across an article entitled "Counties no longer judicial hellholes." The story is in regard to the Illinois counties of Madison and St. Clair being dropped from the list of "judicial hellholes" put out by the pro-business American Tort Reform Association (ATRA). (The story incorrectly reports that these counties were considered anti-plaintiff. In fact, they were considered anti-defendant, which is what the ATRA considers a judicial hellhole.) Tort reform supporters love to talk about judicial hellholes, the McDonald's coffee case, sleazy trial attorneys and how all of these things have conspired to ruin the good old American way. The tort reform campaign has been very successful as laws have been passed across the nation in an attempt to make the court system "fair" for everyone.

Are there places where juries are more likely to side with a plaintiff and give larger sums of money? Absolutely, and every lawyer who is filing a claim for a plaintiff should and does try to file in this venue. These "judicial hellholes" are usually located in lower income areas close to major cities and the juries are often unfair to businesses. In addition, these juries will sometimes award damages far in excess of what most of us would think was reasonable.

Talk of "judicial hellholes" usually ends here. However, if there are places where juries are more favorable to plaintiffs wouldn't it be logical that there are venues which are more favorable to defendants? Of course there are although this is the part you do not read or hear about. These anti-plaintiff counties are often located in areas with wealthier suburbs or in conservative rural areas. While the media loves to report about the judge who sued because the cleaner lost his pants, what we don't read about is the guy who doesn't get anything despite legitimate and very real losses.

Big business, the media and the medical profession have convinced us these anti-plaintiff "judicial hellholes" are what we should strive for to have a "fair" system. Thus, while logic and common sense would indicate that we have three different venues; pro-plaintiff, pro-defendant and fair, the solutions offered by tort reform is limited to curbing the excesses of pro-plaintiff venues. The campaign for tort reform has been so successful that we actively seek out candidates who are willing to take rights away from us and pass laws telling us what "fair" means. While we applaud their right thinking ways, big business is putting money in their pockets.

If we really wanted a system that is "fair" a good place to start would be to expand the area from which we select jurors. Rather than have pro-plaintiff city jurors and pro-defendant suburban jurors restricted by the boundaries of their respective counties we could expand the areas in which each serves to bring a better cross section of society to each area. Tort reformers don't like this solution because they have been successful in taking away choices from jurors and restrictions on plaintiffs. The limitations they have placed on jurors are, of course, anti-plaintiff restrictions that work to put the brakes on "run away juries" but also restrict even the most anti-plaintiff juries in a case where they may stray from there usual "fair" verdicts.

Just as big business does not want true tort reform neither do trial lawyers. While I am unsure of the numbers I am confident that more cases end up in pro-defendant venues then those which are pro-plaintiff. However, lawyers are willing to go along with this system in hopes of getting that one case with real damages, a defendant with lots of money or insurance and a favorable venue for plaintiffs. As a result, the fight has nothing to do with justice but instead it revolves around the almighty dollar.

The tort reform PR campaign has worked and lawyers hear the language of tort reformers every time we pick a jury. However, when you ask these jurors if they know anyone who received an excessive verdict you rarely hear them answer yes. Many of them do, however, know someone they believe was treated unfairly by an insurance company or who wasn't fairly compensated for their injuries. And we all know every tort reformer is a rear ender away from a different view on what is fair.