Congress Needs To End Its War With The Civil Justice System

Huffington Post
Thursday, March 30, 2017

By Joanne Doroshow

Until recently, you may have been hard pressed to find any positive news coverage of civil lawsuits. You were more likely to see a story about some supposed “jackpot” jury award than coverage of anything positive to come from a court case, such as how a lawsuit helped a family with a severely injured child or stopped illegal corporate behavior.

This was no accident, of course. For many years, large industries (like tobacco and insurance), often through Washington DC lobby groups, funded expensive public relations campaigns to deliver carefully packaged messages about the American public’s presumed obsession with suing - even though it was all factually untrue. Their goal was to turn the American public’s mind against the civil justice system and to breed fear, anger and contempt for people who use the courts. They also sought to garner sympathy for corporations, professions and institutions that harm people and communities, and which are subsequently sued in court.

Today, however, public perception of the civil justice system has taken a decided U-turn! In fact, many people now see civil court decisions as having momentous implications, acting as the last line of defense against a possibly law-breaking President and a Congress that refuses to perform its “checks and balances” function. When Trump attacks judges and judicial independence, there is bi-partisan criticism. Those who use the courts get at least respectful coverage like this New York Times story, “In Lawsuit After Lawsuit, It’s Everyday People v. Trump.” The American Civil Liberties Union not only is awash is donations but had its own Oscar ribbon this year.

This new pro-civil justice sentiment is a dilemma for House Republicans. They know full-well that voters did not send them to Washington DC to pass laws blocking constituents’ access to the courts or undermining the independence of judges. Yet many are also beholden to major industry groups like the U.S. Chamber of Commerce, which wants them to do just that. So this year, they tried a new tactic. After slapping together a bunch of major bills that wipe out people’s legal rights, the House Judiciary Committee voted them out of committee without holding a single hearing (although some degree of arm-twisting was likely involved, as this hearing shows), passed most of these bills at breakneck speed, and hoped no one would notice.

Shady hardly describes this behavior. But no wonder proponents of these measures have kept them mostly underground. Consider these real-world facts:

According to the National Center for State Courts (NCSC), “the majority of civil cases are consumer-debt-collection, landlord/tenant, small-claims, and small-contract cases.” In other words, most civil cases involve the “little guy” being sued – not suing. Shockingly, “nearly one-fourth of all civil cases were debt-collection actions.” Moreover, most of these individuals are “unrepresented and lack access to accurate information about court procedures.” NCSC basically scolded policymakers for “missing the forest for the trees” by focusing on things like these House bills. In the real world, it’s everyday people who suffer from a lack of litigation “access and fairness” – not corporations.

Here’s another fact. There is now polling data showing that the public does not support making it more difficult for everyday people to sue, or weakening the legal accountability of corporations that commit harm. North Carolina’s Public Policy Polling recently surveyed voters in several conservative and swing states about one of the House bills (HR 1215) that would “restrict patients’ ability to hold health care providers and pharmaceutical companies accountable for malpractice that results in injury or death.” PPP found, “at least 63% of voters in Alabama, Arizona, Florida, Georgia, Pennsylvania, Texas, and Utah” opposed this bill. And, “[a]mong the seven states polled, the highest level of support for the bill was just 24% while the lowest was 16%.” Moreover, “at least 58% of voters in all seven states say they would be less likely to vote to re-elect their representative if he or she supported the bill.”

Because of conservative (and Democratic) opposition, this bill barely made it out of the House Judiciary Committee. There was also conservative opposition to another House bill – one that would obliterate class action lawsuits. That bill passed the House with bi-partisan opposition but no bi-partisan support. Check out this letter from the House Liberty Caucus, making a strong free-market case against this legislation.

And when it comes to small businesses, the data is crystal clear that they would prefer that lawmakers focus on just about anything other than these House bills. In fact, for small businesses, “lawsuits” is an issue of less importance than almost any issue they could possibly face, or on which they want lawmakers to focus. According to the National Federation of Independent Business’ most recent survey, for example, “Cost and Frequency of Lawsuits/ Threatened Lawsuits” ranked 68 out of 75 possible issues of concern to small businesses. It was listed among the problems of least concern to small business members. It was of less concern to them than “Access to High-Speed Internet.”

In sum, here’s what we know for sure. No one sent politicians to Washington D.C. – or to state capitals for that matter - to wipe out the legal rights of ordinary Americans. No one wants these House anti-civil justice bills, and that’s true whether you’re red, blue, purple or burnt orange. Small businesses don’t want them either. They would rather lawmakers focus on just about any other possible thing. And the only “sue-happy” people in this country are lawyers for banks and debt collectors. They’re the ones that must be reigned in. And here’s what else we know for sure: the next congressional election is just around the corner.


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