Thursday, May 3, 2012

Not guilty of ‘hellhole’ charge

By David Ward, Published in the Philadelphia Inquirer, 5/3/12

America’s often misunderstood and underappreciated civil court system assures that consumers can challenge companies and hold them accountable for products that cause physical or financial harm. Given the influence of corporate money and lobbyists, these courts are often the only place where citizens have a voice equal to that of large corporations.

Those claiming injuries related to Bayer’s Yaz and Yasmin birth control drugs in the Pennsylvania and New Jersey courts, for example, have had a hard enough time getting justice. But take away the authority of the civil courts, and any large corporation willing to make big donations to elected representatives can buy its way out of responsibility.

When plaintiffs seek justice for harms unfairly inflicted on them, moreover, it helps all of us. Each time justice is sought, companies take note that they will be held accountable if their products cause unnecessary harm.

But there has been a growing debate over the role of our civil courts, and it has arrived in Philadelphia. In recent years, groups such as the American Tort Reform Association have railed against a supposed bias in favor of plaintiffs in the city’s courts. The association has used an attention-grabbing annual report, “Judicial Hellholes,” to accuse Philadelphia’s courts of being unbalanced, unfair, and unbelievably terrible.

Criticism and questioning of the fairness and efficiency of our civil courts is not new. In fact, in many cases, there has been real cause for concern about the system — though not the kind raised by tort reformers.

In the recently published Rebuilding Justice, Rebecca Love Kourlis, a former Colorado Supreme Court justice and the executive director of the Institute for the Advancement of the American Legal System, describes the country’s civil courts as “overloaded, politicized, and inaccessible.” She argues that most civil courts don’t work “for the average citizen or business” because cases take too long to go to trial, the public has little trust in the system, and judges are unable to defend themselves against special-interest groups and their influence.

Hard questions
By contrast, Keystone Progress’ Taking Back Our Courts project has found that the Philadelphia civil courts are a model for large urban judicial systems. Unlike the tort reformers, Taking Back Our Courts uses data from official, nonpartisan reports from sources such as the National Center for State Courts, the U.S. Department of Justice, and the federal Bureau of Justice Statistics.

The project’s report, “Justice for Philadelphia Courts,” finds that the Philadelphia civil courts’ “handling of civil jury cases is now better than that of any large urban trial court in the United States.” It also notes that the system has “undertaken an impressive effort to eliminate its case backlog and improve the flow of cases.”

Given Kourlis’ comments about the state of America’s civil courts, the achievements of the city courts are that much more impressive. In fact, the Taking Back Our Courts report finds that Philadelphia is particularly strong in an area that Kourlis sees as crucial to the civil system: efficiency.

The report suggests some hard questions about the framing of the Philadelphia courts as the country’s top “judicial hellhole.” The American Tort Reform Association’s criticism really stems from the perception that businesses suffer due to high rates of litigation in certain areas. But Taking Back Our Courts has shown that the civil caseload in Philadelphia is actually proportionate to the city’s population.

Mythic notions
Furthermore, the idea that litigation is bad for business also appears to based more on myth than on fact. Recent research on civil litigation and its relationship to the business climate has found that a strong economy actually correlates very closely with higher numbers of civil lawsuits.

Tonja Jacobi of Northwestern University is among those who have taken this conclusion a step further by demonstrating that the happiest, healthiest, and most prosperous states actually have higher rates of civil litigation because of greater business activity. This dispels the myth that civil litigation is a sign of an economy gone awry.

Unfortunately, last year’s passage in Harrisburg of the Fair Share Act, which restricts defendants’ responsibility for civil damages, showed that our elected representatives have been manipulated into diminishing Pennsylvanians’ ability to get justice in our civil courts. The same can be said for Pennsylvania House Bill 1976, which would make corporations essentially unaccountable to the civil courts.

There is a growing mountain of evidence that bills like these don’t help economic prosperity over the long term; they hurt it. Pennsylvanians must understand the importance of civil justice as the last, best protector of our health, safety, and economic security. We can’t afford to sit quietly while our civil rights are threatened.

David Ward is civil justice coordinator for Keystone Progress. The report is available at

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