No defense for the indefensible

By The West Virginia Record | Apr 7, 2006

Far be it from our role to make arguments for trial lawyers. But their response thus far to recent criticism of West Virginia's courts -- telling corporate critics to, in essence, shut up -- is less than convincing.

One might also call it "predictable" that leaders of the West Virginia Trial Lawyers Association (WVTLA) would file a complaint that endeavors to pull paid radio ads criticizing our state's legal system off the air. Filing and complaining are their thing, course. At our very best, we're all merely creatures of habit.

The central issue here is the claim that lawsuits cost the Mountain State $1.6 billion annually, or $886 per West Virginian. The number comes from a report done by insurance consultancy Towers Perrin, which advises big companies on business risks.

In this case, "U.S. Tort Costs and Cross Border Perspectives" was not commissioned by a particular Towers Perrin client with an axe to grind. Rather, it's an objective examination of the U.S. civil justice system -- comparing ours to those in countries like Italy, Germany, Spain, France and Japan -- conducted by the firm itself, which stays in business by staying informed on such concepts.

"The purpose of this study is to attempt to quantify the costs, not to support any particular point of view regarding those costs. Any connotation that an increase in tort costs is undesirable is unintended," reads its introduction. "This study takes no position on whether tort costs are too high or too low."

According to Towers Perrin, U.S. lawsuit costs are considerably higher than those abroad. Americans pay 314 percent more for litigation than France, 275 percent more than Japan, and 100 percent more than Germany. In sum, the U.S. "tort tab" has grown an average of 9.6 percent per year since 1950, faster than our total economic output (7.1 percent).

WVTLA takes issue with this total, arguing that Towers Perrin's cost figures are too high because they include "administrative expenses" businesses incur when they get sued over and above, for instance, fees paid to defense lawyers.

That a plaintiff's lawyer might not appreciate the dynamic impact lawsuits have upon businesses doesn't surprise us. They aren't the ones consumed with protecting investors and employees.

Of course, arguing that such an algorithmic disagreement among lawyers and businesses should serve as grounds for the federal government to step in with its muzzle is preposterous. And so are the straw man claims, made last week by WVTLA President Harvey Peyton, that the ads say West Virginia juries "aren't fair" or that its judges "are incompetent." No such charges were ever made in this debate. Proclaiming that they were is a cheap attempt to rile nativist energies against lawsuit reform.

West Virginia employers have a right to make their case against frivolous lawsuits, and they're exercising it. Trial lawyers would be best served to dispense with the attempts at censorship and demagoguery and do the same.

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