CHARLESTON – The West Virginia Trial Lawyers Association has taken the offensive, calling on radio stations to stop airing ads touting a recent study that ranked the state last in legal fairness.
The U.S. Chamber of Commerce Institute for Legal Reform released the 2006 State Liability Systems Ranking Study on March 27. The study, now its fifth year, found that West Virginia courts are among the least fair and reasonable jurisdictions in the country. In the previous four years, West Virginia had ranked 49th, just ahead of Mississippi each year.
Coinciding with the release of the report, the ILR began an ad campaign, including radio, print and billboard ads across the state. The radio ads also mention figures from a Tillinghast-Towers Perrin report on legal system costs. That report says the legal system costs each American $886 per year. That's $1.6 billion for West Virginia.
The trial lawyers group says the ads are misleading because it says the Tillinghast study has been discredited because the total figure includes insurance industry overhead costs.
"We respectfully ask West Virginia radio stations to take the Chamber's misleading ads off the air," said Harvey Peyton, president of the WVTLA. "The ads cite a $1.6 billion 'tort tax' figure that has not only been discredited by several independent sources, but is also now denied by the organization that released it.
"The Chamber knows that the figure is false, and yet knowingly included it in its ads. Since the ads are deliberately false and misleading, they violate FCC (Federal Communications Commission) guidelines."
Peyton said the Tillinghast figures just don't make sense.
"Their analysis is, as I understand it, you take the total cost of insurance in a given year and divide by the number of people in the country," he said. "We say it's the cost of insurance of all kinds. An that has little to do with the cost of civil justice litigation in West Virginia.
"How could the state have something that costs $1.6 billion. The state isn't worth $1.6 billion annually."
ILR President Lisa Rickard, however, dismisses the trial lawyer group's idea.
"I think they're assertions are absolutely ludicrous," she said. ".I don't think any radio station would or should take them seriously. But that's par for the course, a typical trial lawyer reaction of 'let's file a complaint.'
"This is a seminal study. It's been done nine times since 1985 by a world-renowned research firm. So it is what it is. It examines tort costs."
Peyton said he was writing letters to radio stations asking them to change the ads or take them off the air. He said the group also might file complaints with the FCC.
He also said the WVTLA is planning on running some advertising of its own to counter the ILR ads.
"Whatever it takes," he said. "Whatever we can raise the money to do. But we're limited. We don't have a million and a half dollars. But someone has to deal with the issue rationally. If we can't rely on the U.S. Chamber, we'll have to lead way."
The study was conducted by Harris Interactive for ILR. The survey polled more than 1,400 senior attorneys to explore how reasonable and fair the tort liability system is perceived to be by U.S. businesses. The attorneys were asked to judge a number of factors, including overall treatment of tort and contract litigation, treatment of class action suits and mass consolidation suits, judges' impartiality and competence, and juries' predictability and fairness.
West Virginia ranked last in nine of the 12 study categories. Those categories include Having and Enforcing Meaningful Venue Requirements; Treatment of Tort and Contract Litigation; Treatment of Class Action Suits and Mass Consolidation Suits; Punitive Damages; Timeliness of Summary Judgment or Dismissal; Discovery; Scientific and Technical Evidence; Non-economic Damages; and Judge's Competence. The state ranked 49th in Judges' Impartiality, 45th in Juries' Predictability and 48th in Juries' Fairness.
Rickard said she thinks the results of the ILR study hits too close to home for the trial lawyers.
"Clearly, the message we're putting out has touched a nerve with them," she said. "West Virginia has fallen to No. 50 because of its abusive litigation climate. What they're worried about is their own pocketbooks rather than if companies are going to be inclined to bring more jobs into the state."
Peyton counters by suggesting talking to people in the state legal system about the state of the courts.
"Juries aren't fair? Ask what the circuit clerk says about jurists," he said. "And our judges are incompetent? If you see (Kanawha Circuit Judge) Duke Bloom or (state Supreme Court Justice) Elliott Maynard or (Putnam Circuit Judge) O.C. Spaulding in a social setting, ask them about that. Ask them what they think of this rating."
