Why are West Virginia and other venues considered "litigation hellholes" by many?
Are the underlying reasons primarily a product of local juror attitudes and opinions or more closely tied to the workings of the local legal system?
I have served as a trial consultant across the country and observed the workings of legal systems in the United States and abroad. I have conducted jury research in various venues that provide jury pools that are extremely diverse in terms of lifestyle characteristics and attitudes. This opportunity has left me with a very clear picture of the characteristics of a "litigation hellhole."
First, I must admit that some venues are ripe for this distinction due to the nature of the local jury pool. In general, the common perception that regions where lower socio-economic conditions exist produce juries that lean toward rewarding "victims" and "punishing" corporations. What I have also learned through jury research is these types of individuals can also be much more fair than generally assumed given the opportunity through thoughtful presentations by experienced litigators.
Yes, this is more difficult for litigators defending corporations than those representing "victims." Thus, trial research is much more important to the toolkit of corporate defense attorneys than plaintiff lawyers.
However, the overwhelming amount of evidence I have seen that contributes to a venue being christened a "litigation hellhole" is much more a product of the "system" than runaway juries.
What are the primary characteristics of a legal system operating in a "litigation hellhole?"
* Liberal bench: Justices and judges are part of a system that depends in a very large part on INTERPRETATION. They are bound and sworn to fairly apply laws and regulations. If a region is dominated by liberal minded jurists, this leads to favorable rulings for plaintiffs. These rulings are often much more important to the outcome of a trial than jury attitudes and characteristics.
* Liberal lawmakers: Change in legal systems have taken place in various venues formerly considered "litigation hellholes." Texas and Mississippi come to mind. The business community and governments in these areas decided to take action to change the legal environment. More conservative politicians were elected and new laws were passed that limited awards, changed the way judges and justices are brought to their jobs and new legal guidelines were established, among other things that impact whether an area has "litigation hellhole" characteristics.
* Weak business community: Absentee business ownership is a key element to a "handcuffed" business community. Mississippi, West Virginia, sections of Texas and many other regions of the country experience this characteristic. This often leads to an imbalance of power in the local legal system that favors plaintiffs and is biased against corporations.
Therefore, my strong contention is that local jury pools can certainly contribute to a "litigation hellhole" scenario. However, there are other more important characteristics of a venue that lead to its being considered as a "litigation hellhole."
Samples is president of RRS Research, a communications and opinion research agency headquartered in Charleston. He has extensive crises communications, counseling and litigation research experience and has worked for clients throughout the nation during the last 25 years. Contact RRS Research at 304.343.7655.