- The Washington Times - Monday, August 22, 2005

During the first half of 2005, three states adopted substantive civil justice reform — three states, incidentally, that were at the bottom end of every national study analyzing business and legal climates (South Carolina, Georgia and Missouri). Two additional states, Oklahoma and Florida, are on the verge of much-needed reforms.

Seems easy, right? Get your lawmakers on board for reform, mix in support from the business community, make the case to the public and, voila, you’ve got tort reform.

The myth that legal reform will come easily is as dangerous to the forward progress of true legal reform as the twisted playbook utilized by the trial lawyers’ bar over the past two decades.

It’s great to be enthusiastic about success. Hundreds of organizations — representing millions of consumers, workers, employers, patients and professionals — are promoting the idea that a level playing field in the civil justice arena is both needed and wanted. As a result, state lawmakers are sponsoring and supporting new reform laws. State-level legal reform seems to be within reach.

So what’s so dangerous about a strategy that seems to be working? In a word, complacency. The reason that Georgia, South Carolina and Missouri enacted sweeping new legal reforms is that the constituencies who supported reform stepped up and made their voices heard — led by business.

What you don’t hear in the pep rallies and news reports is that these reforms could and should have been enacted years ago. The missing ingredient was the business community fulfilling its responsibility to step forward to support lawmakers and their reform proposals. In this vacuum, the trial bar pursued a campaign of intimidation against these legislators that went unchallenged.

Most lawmakers flee at the thought of public scorn. The trial lawyers’ bar, ever vigilant to protect its turf, spends millions of dollars each year attacking lawmakers who introduce tort reform legislation and supporting opponents of reform. The attacks are brutalandsuccessful, resulting in the loss of many pro-reform candidates across the nation.

If lawmakers are risk-averse, then many business leaders are risk-intolerant. For a number of reasons, some justified and many others merely symptoms of fear, some corporate leaders have decided that it is in my best interest and, therefore, in the best interest of my company to stay quiet.

A Fortune 500 CEO recently confirmed this attitude. I asked him whether his corporation is currently in court, knowing full well that he was deep into multi-state class-action litigation. His answer was revealing. “We simply can’t afford another class-action lawsuit,” he said. “Our shareholders will run for the hills.” My response to him was simple: “Then do something to make it stop.” As representatives of the world’s largest employers, we have an obligation to do whatever we can to protect jobs and investors and to promote the free marketplace. Reforming our legal system to make it fair, predictable and more transparent is a great place to start.

The trial bar plays for keeps. As vigorous representatives for their industry, trial lawyers are willing to put tremendous resources into the struggle they see as vital to protecting their livelihoods. But they create unwarranted fear among the public by promoting the saddest and most extreme examples of wrongdoing — the child injured by the drunk physician, the widow whose husbandwaskilledby exposure to worksite toxic materials — to prove the point that lawyers should be able to ply their trade without limits.

It’s hard work to argue publiclyagainsttrial lawyers, who set themselves up as the white knights of justice. It’s hard, but not impossible.

Coordinating efforts among various groups is key, as is the determination of CEOs to speak up in public forums, including media, public events, and at symposia.

Legal reform success depends on several factors. Multiple constituencies — representing millions of employees, consumers, and professionals — are important. But the indispensable prerequisite to success is the public support of recognized business leaders. By providing public backing for lawmakers whose re-elections are at risk without this support, business leaders will make the crucial difference in getting — and keeping — legislative support for legal reform.

Steven B. Hantler is chairman of American Justice Partnership, a national legal reform project of the National Association of Manufacturers. He is DaimlerChrysler Corp.’s assistant general counsel for government and regulation.

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