Law professor disputes 'hellhole' ranking

By Justin Anderson | Feb 23, 2009



CHARLESTON -- A Southern Methodist University law professor says it's doubtful that West Virginia's judicial climate is as bad as some groups claim.

Elizabeth Thornburg said reports from groups such as the American Tort Reform Association and the U.S. Chamber of Commerce's Institute for Legal Reform that routinely rank West Virginia as a "judicial hellhole" has more to do with pushing the groups' agendas than the actual state of West Virginia's legal system.

Thornburg also pointed to the Chamber's starting publications -– such as The West Virginia Record -– which she said are meant to push that agenda, which many have characterized as working to slant state courts to favor business in personal injury lawsuits.

"This campaign is very long term, very patient and very effective," Thornburg told a group of plaintiffs lawyers Thursday at the annual West Virginia Association for Justice annual conference.

Thornburg also addressed members of the state Senate Judiciary Committee on Wednesday about her doubts of the "hellhole" designations.

She didn't find such an agreeable audience there. Some members of the committee chided Thornburg's findings, which were published in the West Virginia Law Review. (To read Thornburg's report, click here.)

One of them, Sen. Evan Jenkins, D-Cabell, pointed to reforms in medical malpractice law passed in 2000. Jenkins is director of the West Virginia State Medical Association and a lawyer.

Jenkins told the Charleston Daily Mail late last year that the Medical Professional Liability Act -– which, among other things, put a cap on certain damages and required a physician to sign off on malpractice lawsuits -– has caused a dramatic decline in the number of lawsuits filed in the state.

Jenkins said in 2003, there were 315 malpractice suits filed in the state. But in 2007, he said there were only 174 such suits filed. Jenkins also pointed to a decrease in the price of medical malpractice insurance premiums and an increase in the number of doctors choosing to practice in West Virginia.

But Thornburg maintains the state needs to keep better records in order to tell truly if it has a broken legal system.

She said the reports put out by ATRA and ILR are unreliable because they manipulate statistics and figures and leave out important information when citing lawsuits.

Thornburg said the reports also slant readers' views on the subject by using dramatic imagery -– such as a flaming gavel, lopsided scales of justice and rifle scope crosshairs.

She said the goal of the U.S. Chamber has shifted over the years and, with that shift, its budget has grown substantially. She said the U.S. Chamber has morphed from a group that supported local business to a national advocacy organization.

In 2000, the U.S. Chamber was able to raise $35 million for general operations, she said. Just years before then, the U.S. Chamber raised about $3 million, she said.

About $20 million of the budget that year was set aside for "special projects," Thornburg said. These projects involve the various pushes in states for legal reform.

"They're thorough, they have money and they're good at what they do," Thornburg said.

The "hellhole" reports are skewed in the way the groups conduct their surveys, Thornburg said. The ILR's survey, according to Thornburg, consists of asking in-house lawyers and corporate lawyers for companies that make at least $100 million a year what they think of the various states' legal climates.

The surveys also involve state businesses who are asked if they fear prevalent lawsuits will hurt them. She said familiarity with the reports has a lot of business owners saying they do fear the legal system. But a closer look shows that only a small number of those businesses have been sued for personal injury, she said.

She added that some statements made in the reports which appear to be based on empirical data can be traced back to newspaper editorials, op-eds or quotes culled from newspaper stories that were made by ATRA officers or Citizens Against Lawsuit Abuse spokespeople.

Thornburg said ATRA started the CALA groups using money from big tobacco companies.

Thornburg and the West Virginia Association for Justice –- formerly the West Virginia Trial Lawyers Association –- want the state to implement a better system to track lawsuits and their outcomes.

The association is pushing for the state Supreme Court to develop a better system of collecting this kind of data.

Having real data, instead of "misleading" reports about the state's legal climate, would better guide a committee created this year by Gov. Joe Manchin that is studying whether the state's court system needs to be changed.

"Too many of the discussions about our courts lack basic statistical information about how many cases are being filed each year, what types of cases are being filed and how those cases are being resolved," WVAJ President Allan N. Karlin said in a statement.

"For too long, the state has relied on either incomplete information or hearsay," Karlin added. "We need broad-based, accurate data so lawmakers and others can make sound decision about our court system."

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