WASHINGTON, D.C. – West Virginia ranks 45th in the nation for lawsuit climate, according to a new survey released by the U.S. Chamber Institute for Legal Reform.
The survey, released Sept. 18, shows the Mountain State in the same spot it was in the last survey from 2017. The West Virginia Record is owned by the ILR.
West Virginia’s current ranking “reflects, in part, a lack of legislative progress in the last two years, most notably on the creation of an intermediate court of appeals.”
“West Virginia’s lawsuit climate remains at the same spot – 45 – as it did in 2017 when it moved up five spots,” said Harold Kim, chief operating officer of the U.S. Chamber Institute for Legal Reform. “But this isn’t the time to feel discouraged. The state is moving in the right direction.
“If West Virginia wants to get out of the bottom 10, it needs to create an intermediate court of appeals. Right now, there is only one court that handles all appellate cases, which is a huge problem.”
An official with a statewide legal reform group agrees about the need for an intermediate appellate court.
“While we are encouraged that job creators from around the country are noticing the progress West Virginia has made on legal reform, West Virginia Citizens Against Lawsuit Abuse also acknowledges that our state is still out-of-step with the rest of the country by not having an Intermediate Appellate Court and we still have the worst medical monitoring law in the nation,” WV CALA’s Greg Thomas told The Record. “These improvements, in addition to fixing seatbelt admissibility, would go a long way to moving our state up the legal fairness rankings.”
A statewide group for trial attorneys denounced the report as “fake news.”
“The Chamber continues to mislead West Virginia lawmakers and voters with its fake study,” said Kristina Thomas Whiteaker, president of the West Virginia Association for Justice. “It's been discredited by legal experts, the media and even its own authors for more than 10 years.
“What more ridiculous is that these out-of-state, special interests are trying to use this fake study to force the West Virginia Legislature to give them an intermediate court.”
Whiteaker also took issue with ILR donors being surveyed for the report.
“Of course those respondents are going to say exactly what ILR wants them to say,” she said. “Only 13.39 percent of respondents even answered questions on West Virginia The report's authors state that ‘results may be based on small sample sizes. Caution should be used in drawing any conclusion from results based on these small samples.’
“We shouldn't be expanding the size of our state government and wasting millions of our limited tax dollars on an intermediate court we don't need just to appease some Washington insiders who release a fake report to help increase their profits at our expense.
“West Virginia lawmakers should be focused on the real problems facing this state like our bad roads, better broadband and improving job training and education so we have the workforce needed for 21st century jobs. We don't have time to waste on manufactured problems with solutions that line the pockets of corporate billionaires and take away the rights of West Virginians.”
The 2019 Lawsuit Climate Survey: Ranking the States was conducted by The Harris Poll on behalf of the ILR. It questioned senior business executives about the fairness and reasonableness of state court systems.
Delaware, Maine and Connecticut are ranked at the top. The bottom five rankings, from worst to 46th, are Illinois, Louisiana, California, Mississippi and Florida.
West Virginia improved by eight spots in the Overall Treatment of Tort and Contract Litigation key element category.
The president of the state Chamber of Commerce said progress on legal reform takes time.
“Reputations are earned over time,” Steve Roberts told The Record. “It’s always hard to live down a bad reputation. We expect that our state’s reputation will improve with time. Many efforts and years of work have gone into restoring balance to our courts.
“Over time, this will be recognized and acknowledged. For the time being, we see some of our improvements recognized at a national level, and we are no longer in last place. West Virginia needs to be a state where the law is fairly applied always and everyone can expect fairness and an even handed application of the law. Over time, with those rules in place, we will move up in the rankings.”
According to the survey, a record-high 89 percent of participants said a state’s lawsuit environment is likely to impact their company’s decisions about where to locate or do business.
The ILR also said last year’s scandal on the state Supreme Court and the lack of judicial precedent further highlights the importance of having more than one appeals court.
However, the ILR also says the state Legislature understands the importance of improving its lawsuit climate and enacted a series of legal reforms. From 2015 to 2019, some of the reforms included curbing forum shopping, not allowing out-of-state plaintiffs into West Virginia courts, limiting how much private lawyers make if the state attorney general hires them to represent West Virginia, abolishing the state’s “joint and several liability” doctrine and regulating small-loan lawsuit lenders.
State Senate President Mitch Carmichael (R-Jackson) said he wants to see more progress as well.
“I’m encouraged that our ranking in this poll is holding steady, but I can’t help but to feel a sense of knowing we could be better,” Carmichael told The Record. “We have made it a priority in the Senate to create an intermediate court of appeals for West Virginia, and unfortunately, we’ve never been able to get that across the finish line.
“I hope that this session, that will change. We have made tremendous strides toward creating a fairer, more predictable court system in our state, but it is clear that not having an intermediate court of appeals is the last outlier we need to fix before we can truly declare victory.”
This year’s survey is the 12th conducted the survey since 2002. The results are based on interviews with a national sample of 1,307 in-house general counsel, senior litigators or attorneys, and other senior executives who are knowledgeable about litigation matters at public and private companies with annual revenue of at least $100 million.