October was a great month for legal
reform in Washington. Well, sort of.
Early in the month, Congress approved
and the President signed a bill that would protect firearms manufacturers from
frivolous lawsuits that aim to hold gun makers responsible for the actions -
almost always illegal - of individuals.
Later
in the month, the House passed a bill to protect restaurants and other food
companies from lawsuits that blame them for their customers’ obesity.
And at the end of the month, the
House approved a bill to reduce the number of meritless lawsuits by
strengthening Rule 11 of the Federal Rules of Civil Procedure. This excellent
piece of legislation (HR 420) moves the legal reform ball forward in several
crucial ways.
Key provisions include:
-
Cracking down on forum shopping
by requiring that lawsuits be filed where the plaintiff or defendant lives,
or where the defendant does business, or the place where the injury or harm
occurred.
-
Requiring that courts impose
sanctions on attorneys, law firms and parties who file frivolous lawsuits
and eliminating the gigantic loophole that allows a frivolous lawsuit to be
withdrawn in order to avoid sanctions.
-
Allowing judges to make
plaintiffs pay for the defendants’ litigation costs that arise as a result
of a frivolous lawsuit.
-
Requiring judges to suspend for
at least one year an attorney who has violated Rule 11 three or more times.
-
Strengthening sanctions for the
intentional destruction of documents involved in a court proceeding.
If this bill becomes law, it would
represent a tremendous step forward for civil justice reform. It would also go a
long way toward restoring the proper balance between plaintiffs’ interest in
gaining access to the courts and the right of defendants to get a fair shake.
Perhaps best of all, it ensures real consequences for the greedy trial attorneys
who clog our courts with frivolous claims that accomplish little more than
padding their already well-lined pockets.
However, even though HR 420 is
certainly a positive step forward, it’s not a particularly earth-shaking
measure. Boiled down to its essentials, it only tries to make life hard on
lawyers who behave irresponsibly by filing frivolous lawsuits. But even that
small step is a bridge too far for trial
lawyers, who apparently want to protect their ability to keep filing improper,
dubious and frivolous lawsuits.
So, HR 420 is not likely to become
law. According to one news report, the bill “has little chance of being taken up
in the Senate.” Indeed, for those who are regularly involved in the pursuit of
legal reform, “doomed in the Senate” has become a common refrain.
One might think that with its
Republican majority, the Senate would be favorably disposed to legal reform. In
fact, most of the Republican members of the chamber are generally supportive.
And the Republican leadership has repeatedly demonstrated its commitment to
addressing the many problems that plague our civil justice system.
But the problem isn’t the
Republicans. It’s the minority Democrats who, despite their small numbers, still
have enough votes to effectively block legislation in the Senate.
These are the same Democrats, of
course, who remain firmly in the pockets of the trial bar. According to
published reports, trial lawyers and their allies contributed more than $100
million to Democratic candidates, PACs and affiliated organizations during the
2004 campaign. And the trial bar is categorically opposed to anything that might
sidetrack their legal gravy train.
Situations like this cause cynicism
and distrust of our government. The Senate used to be the home to great orators,
like Daniel Webster, and legendary legislators like John C. Calhoun. Now,
instead of embracing common sense proposals, or engaging in a real debate about
why the proposals should be rejected, Senate Democrats offer only an
inexplicable “no” and effectively prevent the proposals from ever being
considered.
It’s time for the Senate to get busy.
It’s time for Senate Democrats to stop acting like robots, reciting talking
points while they dig in their heels. It’s time for the Senate Democrats to
lead, follow or get out of the way.
“Doomed in the Senate” is no longer
an acceptable epitaph for common sense civil justice reform legislation. Not
when justice is at stake.
