U.S. Chamber, W.Va. trial lawyers comment on proposed rule changes

By Jessica M. Karmasek | Jul 23, 2010

CHARLESTON -- The U.S. Chamber of Commerce's Institute for Legal Reform says changes proposed by the West Virginia Supreme Court to its appellate procedures don't go far enough.

CHARLESTON -- The U.S. Chamber of Commerce's Institute for Legal Reform says changes proposed by the West Virginia Supreme Court to its appellate procedures don't go far enough.

The institute -- which filed its comments Monday, the last day public comments could be submitted -- is calling for a creation of an intermediate court of appeals.

"This solution would lighten the workload of the Supreme Court of Appeals, provide further guidance and clarity in the law for trial courts, and increase public confidence in the judicial system," wrote the ILR, which owns The West Virginia Record.

The organization also says it is concerned the proposed rules would establish a system that violates the state's constitution.

"The intent of the proposed revisions is to provide all litigants with an appeal as of right, requiring the Supreme Court to issue a written opinion explaining its decision in each appeal," the ILR wrote in its comments. "However, not every case would be entitled to plenary appellate review."

Instead, the institute argues, the proposed revisions create a two-tiered system, "with disparate procedures and time allotments for oral argument, depending on whether the justices believe the case involves a major appellate issue or only a minor one."

In addition, the institute says the revised rules threaten to increase the workload of an already-overburdened Supreme Court.

According to statistics provided by the state's Supreme Court of Appeals, in 2006, a total of 3,631 appeals were filed with the appeals court -- nearly 1,500 more than the next busiest state lacking a permanent intermediate court, Nevada, and more than Delaware, Maine, North Dakota, Rhode Island and Wyoming combined.

Over the past few decades, the institute writes, the appeals court's caseload has increased dramatically, from 1,159 filings in 1983 to a high of 3,954 in 2007.

Because the proposed revisions would fail to create a robust right of appeal, the ILR argues, companies doing business in West Virginia "would continue to face the risk of extremely high punitive damages verdicts with no real guarantee of meaningful appellate review."

While the state's appeals court occasionally reviews punitive damages awards, it has denied review of some very large and highly publicized awards, the institute wrote.

It argues this is "feeding the perception that businesses will not be afforded even basic protections from excessive punitive damages verdicts when sued in West Virginia."

The institute points to May 2008, when the appeals court refused to review a $100 million punitive damages award in Wheeling-Pittsburgh Steel Corporation vs. Central West Virginia Energy Company. The case involved allegations of breach of contract and fraud.

The ILR also points to another case, in the same month, the court declined to review -- a $404 million jury verdict, including $270 million in punitive damages in Estate of Tawney vs. Columbia Natural Resources. It was a case involving natural gas royalties. Following the court's denial to review, the defendants were forced to settle for $380 million.

"We appreciate that, in the absence of legislative action to date, the court has used the tools it has at its disposal -- rule revisions -- to attempt to achieve substantive change," the institute wrote in its conclusion.

"However, rulemaking alone will not resolve the problems that plague the current system."

Meanwhile, the West Virginia Association of Justice, in its comments also filed Monday, said it welcomes the proposed revisions and "generally approve the same."

However, the WVAJ did take issue with some of the language within some select revised rules, including Rule 5.

In it contains a new rule regarding the filing of a notice of appeal within 30 days. WVAJ argues the 30-day deadline to submit assignments of error may cause hardship.

"Oftentimes, the trial record is not ready for review within 30 days of the final judgment," the WVAJ wrote in their comments. "We request some leniency be given ..."

The WVAJ represents more than 500 attorneys in private practice and public service throughout West Virginia and surrounding states.

The association says it is "committed to preserving and improving our civil justice system so that any person injured through the misconduct and negligence of others can seek justice in our courtrooms."

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