Geese and Ganders

Professor Ribstein makes some acute observations about "litigation hellholes" on Ideoblog. At least, they're acute observations in principle; and, if underlying data supports them, they reflect a problem to be addressed. I question, though, whether an objective look at verifiable statistics would validate the reputation of the jurisdictions in question. I completely discount Professor Brickman's report as demonstrating anything other than possible problems with judicial selection. (Serious ones, granted; but hardly unique to Madison County in particular or Illinois in general—they apply to every state that elects judges.) I don't doubt Professor Brickman's analysis within its context: one case gone awry. Extending that one case to a general rule, however, begs the question of whether the problem, if it exists and is properly defined, is fixable by "tort reform" or indeed anything else.

The ATRA's report is on its face an invalid foundation for criticism. Its abstract states in part:

ATRA has conducted a survey of its members to determine which areas they would identify as judicial hellholes based on their experience. ATRA interviewed individuals familiar with litigation in the hellholes in an effort to determine what makes each area a judicial hellhole, and to document the litigation abuses that occur in hellholes. ATRA conducted independent research of press accounts, studies, court dockets, and other publicly available information to verify and substantiate these claims. While high profile issues, such as medical malpractice, asbestos lawsuits, and class action abuse, dominate the headlines in some hellholes, we believe that such examples indicate a broader lack of fairness that is occurring in these courthouses. Any individual or employer has reason to fear a lack of due process if sued in a judicial hellhole.

American Tort Reform Association, "Bringing Justice to Judicial Hellholes" (2002). This approach:

• Misses the majority of claims for injury, as it is based on litigation only;
• Is based upon a nonvalidated survey population providing anecdotal, self-justifying responses that are presumably from the losing parties;
• Does not look at balancing factors, such as plaintiff-hostile jurisdictions (a few miles up the road in Sangamon County, for example);
• Does not control for subject matter of torts;
• Does not look at intracase causation of "litigation abuses," such as an alleged tortfeasor's refusal to communicate prior to suit; conduct by an alleged tortfeasor's insurance company (don't kid yourself—the insurance companies are running the show); conduct by an alleged tortfeasor's counsel, particularly during the class certification process; stonewalling during discovery; and supercilious and condescending treatment of judges and juries as being "antibusiness." Of course, even if this was considered, the ATRA's agenda would not allow it to try to balance abuses on the plaintiff's side—and they do occur—against abuses on the defendant's side—and they do occur.
• Does not acknowledge bias.
• Does not test its data for statistical significance against a control group or a validated population group, and assumes that the "proper" number of tort claims is necessarily a direct function of population.
• Does not consider alternate means of controlling the cited abuses.

So that brings us back to the initial question: Are there objectively verifiable "judicial hellholes"? If so, what does the data tell us about how to "fix" them—or whether to fix them? <SARCASM> After all, no defendant would ever stoop to moving a case closer to its headquarters, but away from the place where the event took place and the plaintiff resides, because it will then have the home-field advantage. </SARCASM> Can they instead be fixed or mitigated by reforming the judicial selection process? Can they instead be fixed or mitigated with evenhanded, but vigorous, enforcement of attorney ethics rules? Can they instead be fixed or mitigated by referring matters to nonjudicial prescreening, whether by arbitration, special masters, or some other device?

I don't know the answers to these questions, nor to many others. What I object to is the Olympic-caliber conclusion jumping performed by some of the louder proponents of tort reform (and no, that does not include Professor Ribstein) from uncontrolled, self-interested anecdotal reports in one jurisdiction to nationwide schemes to "fix" a problem with uncertain causation, uncertain consequences—and no examination of collateral effects of the scheme.