By Graham Steele & David Arkush
Far too often, the press covers civil justice issues purely as battles between special interests — business versus "the trial lawyers" — without much discussion on how the policies at issue would affect the public. We weren’t surprised when the Wall Street Journal presented our opposition to pre-dispute binding mandatory arbitration as kowtowing to the trial lawyers. The editorial board of the WSJ is unabashedly conservative and pro-business, and a battle between powerful, well-resourced special interests provides a compelling narrative. We were happy to set them straight. But this story line persists with too many of the civil justice issues that we work on here at Public Citizen — and in too many publications from which we expect better.
If you read the CL&P blog over the weekend, you saw an example in a brief excerpt of a recent NY Times Magazine article about the "tort war" between the United States Chamber of Commerce and the American Association for Justice (formerly the Association of Trial Lawyers of America). The article mentions two important pieces of legislation, the Arbitration Fairness Act and the Sunshine in Litigation Act, but discusses them in the frame of the "tort reform battle" rather than reporting on their value to the American public generally:
At the federal level, trial lawyers are pushing for a law that would
make it easier for consumers to sue instead of having to submit to
binding arbitration, as many contracts — for credit cards, for example
— now require. The trial lawyers are also trying to make it harder for
defendants to keep legal proceedings secret.
These proposed laws might benefit trial lawyers, but much more important is that they will benefit the public. That’s why we’re working to pass them:
- Average Americans are not just forced into binding arbitration when they bring tort suits. Arbitrators also decide statutory discrimination claims, fraud or unfair and deceptive practice claims, and disputes under contract law. Also, as we demonstrated in a 2007 report, the overwhelming majority of consumer arbitrations are initiated by businesses. Prohibiting mandatory arbitration is not about getting lawyers more business. It’s about ensuring that disputes between consumers and companies are resolved in a truly neutral forum — not private, company courts, where the odds are stacked against consumers.
- Unsealing court settlements and case-related information benefits the public because it helps consumers make informed decisions in the marketplace, alerts the public and the government to important health and safety issues, and exposes and deters misconduct. Court secrecy isn’t about the financial incentives of lawyers. In fact, it’s often in a plaintiff attorney’s financial interest to agree to secrecy. The Sunshine in Litigation Act prioritizes the public interest above the financial interests of specific parties and their lawyers.
On a separate issue, a recent National Journal article discussed a bill introduced last week that would reverse the Supreme Court decision Riegel v. Medtronic, which granted medical device manufacturers immunity from lawsuits. Again, the article frames the issue as a battle of special interests: "Trial lawyers have started to target issues on a case-by-case basis
where they sense that preemption has run amok to the detriment of
consumers who are unable to seek redress in the courts . . . Opponents rely on an old standby: bashing the trial bar." And again, the narrative misses the point. Riegel was argued by Public Citizen’s litigation group, not "the trial lawyers." As Allison Zieve, the lawyer who argued the case, points out, "[t]he possibility of being held liable for injuries their products cause
creates an invaluable incentive for manufacturers to make their
products as safe as they can, to revise labels as soon as they become
aware that they are inadequate and to remove unsafe products from the
Holding manufacturers accountable means better, safer medical devices for patients. Businesses benefit directly from the liability shield created by preemption — they get complete immunity from accountability for the harm they cause — and the public would benefit from undoing the Supreme Court’s decision. Trial lawyers might benefit too. But that’s a much less interesting and less important part of the story — and it’s certainly no reason to oppose a policy that would benefit tens of millions of Americans.
The "cui bono" slant of all of these stories obscures the important fight to preserve the public benefits of the civil justice system, and the ways in which these bills would advance the interests of ordinary citizens. Courts are public institutions that help Americans uncover necessary information, deter wrongful conduct, and redress injuries. The press should stop distracting us with stories about bickering special interests and spend more time writing about what’s in the public interest. The public could use some good reporting on these important bills in Congress.