Is it possible economic development offices of states like Utah, Tennessee and the Carolinas have hired California’s personal injury lawyers to help lure companies away from the Golden State?
The thought crosses one’s mind when looking over what the trial lawyers are serving up in the California Legislature this year.
First came an anti-privacy bill that treats defendants like they are guilty as charged before anyone’s even gotten near a judge or jury.
Then we have attempts once again to ban agreements to settle disputes through arbitration. This would hurt businesses, consumers, and the courts.
Premiering this season is an amazingly bad bill that would let a personal injury lawyer file a liability lawsuit any time a housing code violation is detected. And rounding out the “worst of the worst” is a bill to gut a judge’s ability to throw out meritless lawsuits early in the game.
Personal injury lawyers hate the current “summary judgment” rule because it keeps them from dragging a frivolous lawsuit out until their opponent settles for economic reasons or , eureka! , getting the case to jurors who might be bamboozled into a bountiful punitive damage verdict.
This is the kind of plaintiffs’ lawyer wish list you don’t want to read if you’re a California business person already worrying about soaring electricity costs and decreased energy reliability.
The anti-privacy proposal (in identical bills, SB-11 and AB-36) is a bad remake of a bill that failed last year. With few exceptions, it would automatically make public any discovery or other information collected in a lawsuit accusing a firm of making a defective product, releasing hazardous materials, or committing securities or insurance misdeeds. The assumption, evidently, is that if a trial lawyer claims you did something worth suing over, you lose most of your right to privacy. (If you think only big firms need worry about this one, remember that a restaurant-cooked meal is a “product.”)
Lawyers claim they want to protect the public, that deep secrets of wrongdoing are hidden in litigation.
Never mind that a lot of what is collected in pretrial discovery is hearsay, accusations, and other material that would never be admissible in a trial. Never mind that every state (and Congress) looking at this assumed-guilt method of making discovery information public has rejected it.
Business Week’s recent revelations in “The Litigation Machine” show why the trial lawyers really want SB-11 and AB-36. They are running a nationally orchestrated “drive for documents” to feed their members-only Internet Web sites that help lawyers file copycat lawsuits on every topic they can think of (too-loud fire engine sirens is one of their newest “causes”).
One hopes the anti-arbitration proposals (SB-410 and AB-1067) will run into the new headwinds blowing from the courts and the governor’s office. The California Supreme Court last summer ruled employment contract arbitration agreements were legal and set out guidelines to make them work better. Gov. Gray Davis last fall vetoed a bill targeting arbitration in mobile home park contracts, going out of his way to state his belief that “mediation and arbitration clauses serve a vital purpose (in) solving disputes” and that “litigation is a more costly means of dispute resolution in a court system plagued by case backlogs.”
The pro-frivolous lawsuit bill (SB-476) shifts the summary judgment burden of proof, virtually making a defendant have to prove innocence before getting a dismissal. It would even have the law declare summary judgments to be disfavored in California!
The construction bill (SB-475) is pitched as a reversal of last fall’s state Supreme Court decision which upheld traditional law; you cannot bring a liability lawsuit over a defect that has not caused damage. The court said the ruling the trial lawyers wanted “would like increase the cost of housing by an unforeseeable amount as builders raised prices to cover the increased risk of liability.” These lawyers see no prospect of contingency fees in the preferred solution of beefing up builder warranties and getting disputes into arbitration.
If this session is like the past one, we will see bills to give plaintiffs’ lawyers new fee opportunities by giving them new kinds of suits to file. One has shown up already (SB 588), letting private lawyers sue to enforce prevailing wage laws. Right now, enforcement is the sole responsibility of the Department of Industrial Relations.
With California internationally portrayed as a less-than desirable place to be doing business right now, one would think policymakers might be focusing on ways to offset that perception. The state’s pro-litigation laws are a prime place to start.
Sullivan is president of the Sacramento-based Civil Justice Association of California, a nonprofit association representing businesses, professionals, and local governments.
