THEIR VIEW: Candidates should rely on facts, not push buttons

By The West Virginia Record | Aug 26, 2010



CLARKSBURG -- Reading Judge John Yoder's recent guest column in The West Virginia Record reminded me why our country is so divided.

As a candidate for the West Virginia Supreme Court of Appeals, Judge Yoder should appreciate that a candidate's positions must be based on accurate information—not on political propaganda.

Although I have never appeared before him, I am confident that Judge Yoder would never allow an attorney to make an argument contrary to the evidence, and candidates for public office should hold themselves to the same standard.

In his column, Judge Yoder cites to studies that that attack our state's business climate -- all of which have been widely discredited as inaccurate and sheer propaganda. These challenges come not from trial lawyers, as Judge Yoder suggests, but from independent groups demonstrating that these studies are not only invalid, but a concerted effort by big insurance and big corporations to turn the public against our civil justice system.

As WVU Economic Professors Richard Brisbin and John Kilwein noted in their report, The Future of the West Virginia Judiciary: Problems and Policy Options, "The debate over the West Virginia justice system has at times become heated, where often hyperbolic and biased political rhetoric replaces systemic social scientific consideration of the issues at hand ... business interest groups and the media produce stories about abusive litigation that neglect important contradictory information, rely on erroneous information, make assumptions based on inaccurate anecdotes, or use inadequate evidence and slogans generated by the 'research' arm of interest groups who neglect normal standards and practices of empirical social scientific inquiry."

These findings are echoed in Cornell Professor Elizabeth Thornburg's Judicial Hellholes, Lawsuit Climates and Bad Social Science: Lessons from West Virginia, in which she writes, "As public relations ventures the ATRA [American Tort Reform Association] and ILR [the U.S. Chamber's Institute for Legal Reform] campaigns have been an astounding success. As well-founded, honest commentaries on judicial systems, however, they are a major failure ... empirical research by neutral scholars consistently shows that the claims [in these studies] are false or exaggerated."

Judge Yoder relies on the Forbes ranking, yet it is based on two other studies that have been widely discredited in their own right -- the Pacific Research Institute (PMI) and the Tillinghast Towers Perrin (TTP) report. In the peer-reviewed study Jackpot Justice and the American Tort System: Thinking Beyond Junk Science, legal scholars Tom Baker, Herbert Kritzer and Neil Vidmar found that the annual PRI reports are "without scientific merit and present a very misleading picture of the American tort system and its costs."

They say that the report is "advocacy disguised as science" and that "from the very outset the research was fatally flawed." The authors of the TTP reports themselves were forced to admit in 2005 that the "costs tabulated in this study are not a reflection of litigated claims or of the legal system" and that data was used "in a way that's probably misleading."

Judge Yoder also cites the recent CNBC "Top States for Business" rankings. The legal and regulatory climate was just one of ten factors cited, however, CNBC does not disclose how it arrived at its rankings. If the CNBC analysis has not be checked independently, how can anyone rely on its conclusion? CNBC did state that it used data from the National Association of Manufacturers (NAM). Through its front group the American Justice Partnership, NAM issues its own annual study which does not provide new analysis. It simply cites the discredited ATRA Judicial Hellhole report and the PRI study.

Interestingly, NAM released another survey of manufacturers in the United States showing that the "fear of litigation" ranked at the bottom of their list of concerns.

Judge Yoder states that it "does not really matter whether these ratings are fair or accurate, but it is the perception they create that matters. Perception can be reality." On this point, Judge Yoder is unfortunately correct, which begs the question: why do we let out-of-state big business get away with lying about West Virginia?

The perception being created by these lies hurts business in our state, and it's up to our elected officials to put a stop it by not placating them with laws that take away rights for working families and our own businesses. These lies also prevent us from focusing on our real strengths and weaknesses, and allow out-of-state businesses not to follow the rules.

The reality is that our problem is geography -- not our legal climate. One need only drive west on Interstate 68 from Maryland and look around. Development abounds until you reach the foothills of the Cumberland Mountains in western Maryland, then it all stops.

You get the same result driving south from Pittsburgh on I-79. Big industries need 1,000 flat acres and one is hard pressed to provide 100 flat acres in West Virginia that are not already developed.

Instead of letting a false "perception" control our state, we should be combating the mouthpieces of false perceptions and market our strengths to the rest of the country and overseas. We should tout The Milken Institute's Cost of Doing Business Index which ranks West Virginia as the fourteenth best state for business costs (including legal and tax costs).

According to the West Virginia Development Office's "Open for Business Report:" West Virginia's economy grew 3.5 times faster than that of the rest of the country in 2008; our business costs are 13 percent below the national average; West Virginia is within overnight trucking distance of more than half the U.S. population and a third of the Canadian population; the cost of living in West Virginia is 5.4 percent below the national average; our rails system has been modernized; and we have one of the lowest crime rates in the country.

Education Week gave West Virginia's educational system its highest marks in technology education, showing that our students will be at the forefront for jobs in the growing technology sector. The WVDO office also cites a national benchmark study that shows that our workforce is among the most productive in the nation. Even put West Virginia on its "Best Places" list. That is just a little bit of the truth. Don't forget that the National Center for State Courts ranks us as one of the lowest states for lawsuits per citizen.

I would hope that Judge Yoder -- and, indeed, every elected official in West Virginia -- recognizes that "perceptions" exist only if we allow it. Regarding our legal climate, the false perception created by big out-of-state interests must be stopped, so the rest of the country can judge us on our merits, on our workers, on our strengths, and on what we have contributed to this great country. If we can do that with a single voice for all of West Virginia, everyone will recognize that we are a great place to do business.

Romano is an attorney practicing in Clarksburg and is president of the West Virginia Association for Justice.

Editor's Note: The West Virginia Record is owned by the U.S. Chamber's Institute for Legal Reform.

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