The U.S. Supreme Court on Monday declined to review a case that could have reined in the excessive use of contingency-fee lawyers by governments. Without comment, the court declined to grant certiorari in Atlantic Richfield et al. v. Santa Clara County.

Some cash-strapped counties and cities will no doubt interpret the court’s decision as granting them carte blanche to contract with private attorneys to carry out government lawsuits. However, these contingency fee arrangements remain an example of bad public policy that puts the law firms’ interests ahead of the public interest.

The National Association of Manufacturers joined other industry groups in filing a friend of the court brief urging review of the case. Our NAM Manufacturing Law Center entry summarized the issues, which include a due process argument:

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The National Association of Manufacturers, American Chemistry Council, Texas Chemical Council and U.S. Chamber on Feb. 12 filed an amicus brief in the Texas Supreme Court, fighting the continued abuse of discovery in a South Texas mass tort against chemical manufacturers, In Re Allied Chemical Corporation, et al, Relators. The brief is here.

The brief challenges the judge’s handling of the lawsuit filed in Hidalgo County, one of the South Texas jurisdictions that constitute a “Judicial Hellhole” as described by the American Tort Reform Association. It’s a far-fetched suit as 1,800 plaintiffs claim to be harmed by general exposure to chemicals going back to 1950. The case has also been dragging on for a decade, as the judge keeps allowing the plaintiffs to avoid defendants’ efforts at discovery. The defendants can’t even gain the most basic of information they need to mount a defense, such as the products supposedly involved, claimed exposures and basic causation.

In April 2009 the defendant companies filed a petition for a writ of mandamus with the Supreme Court, now supported by our brief. The brief argues: “A true adversary justice system must require a claimant to shoulder the burden of proof, determine whether the claimant’s burden has been satisfied, and then subject the determination to review. Cases such as this one appear to follow different rules that require correction.”

Our brief urges the Texas Supreme Court both to order the lower court to act and to change the rules of procedure to prevent other courts from continuing to behave this way in the future: “Society cannot tolerate a system of justice in which the value of a claim is based upon the ability to drive up risk and avoid resolution on the merits rather than on the defendant’s fault for the plaintiff’s injury.” Failure to resolve this problem undermines public confidence in the courts, violates constitutional rights and prevents a defendant from clearing his name in court, the amici argue.

Last week the Texas Supreme Court set oral arguments on the companies’ petition for March 24. Again, our brief argues for granting the petition for mandamus, but also for correcting court procedures to prevent this kind of discovery abuse from occurring again. Specifically, the the Court could consider options such as: (continue reading…)

The American Tort Reform Foundation this morning released its annual Judicial Hellholes® report, one of the best overviews of the failings, excesses and even criminality of the U.S. civil justice system as manifested at the state and local level.

From the news release:

Washington, DC, December 15, 2009 — The American Tort Reform Foundation today released its annual Judicial Hellholes®report, naming some of the nation’s “most unfair civil court jurisdictions,” including first-time “Hellholes” New York City and the appellate courts of New Mexico, which join perennials South Florida, West Virginia, Cook County, Illinois, and Atlantic County, New Jersey.The report also cites several “Watch List” jurisdictions that are on the cusp – “they may fall into the Hellholes abyss or rise to the promise of Equal Justice Under Law” – in California, Alabama, and former Hellholes in the Rio Grande Valley and Gulf Coast of Texas, Madison County, Illinois, and Jefferson County, Mississippi. …

“Lawsuit abuse continues to have a negative impact on both the nation’s economy and its health care system,” began ATRF president Tiger Joyce. “Every dollar spent defending against a groundless lawsuit is a dollar that won’t be spent on research and development, capital investment, worker training or job creation. Unfortunately for those living in Hellholes jurisdictions during this economic downturn, it can be that much harder to find or keep a job and get critical health care services as employers and doctors are driven away by the threat of costly litigation.”

The full report is available here as a download. It’s an excellent read.

Coverage …

• West Virginia Record, “Hellhole report sparks debate”
• West Virginia Record, “South Florida the top ‘Judicial Hellhole’”
• St. Clair Record, “Madison and St. Clair counties on ‘Hellhole’ watch list”
• KMOX.com, “Madison County no longer a “judicial hellhole”, but concerns linger“

The “Record” publications are affiliated with the U.S. Chamber of Commerce and its legal reform arm, the Institute for Legal Reform.