JOKING ABOUT JUDICIAL HELLHOLES . . . What do you get when you cross an insurance company called "AC/DC" with a judicial order remanding a case to Madison County, Illinois? According to one defense firm's weblog, it's a highway to hell.

I wonder if this failure by a defense firm to take the judicial-hellhole slur with a perfectly straight face means that ATRA's propaganda campaign is losing some of its force. It won't be long before they'll have evil genius (and tort-textbook author) Victor Schwartz  come up with some other clever slur. Schwartz is the lawyer from Shook Hardy who invented the term. Any suggestions for him?

Meanwhile, I'm working on a propaganda campaign of my own. I'm going to take ATRA's term and turn it on its head. Rather than "judicial hellholes," I'll be focusing on those jurisdictions in which the playing field is tilted in favor of big business. I'm calling them "consumer hellholes." What do you think?

Related posts about judicial hellholes and Victor Schwartz:

1. "Surprise! It's Another Stupid Article About Madison County, Illinois"

2. "On Surviving the Lion's Den"

Concluding note to fans of Victor Schwartz: When I say he's an evil genius, I mean that only in the most complimentary sense. If we were picking teams, I'd certainly want him on mine.

Comments

[EvilGeniusMini]

The real Evil Genius ... Steve Spurrier. Nickname coined by Georgia Fans in the early 90s.

[Eh Nonymous]

If it were me, I'd consider it a compliment.

Consumer hellholes? Not bad. Got a better ring than the ones I'd have tried instead, like "plaintiff," or "individual," or (sometimes) "civil liberties" or "equality" or "fairness" or "access to courts" or "injured victims" or....

Somebody from the other side philosophically of the tort reform Thing please balance out by suggesting some helpful alternatives for Evan.

[Ted]

Unfortunately for Evan, there will never be a proper analogue; in these hypothetical "hellholes", even if they exist, consumers that prefer a court system unfairly biased towards plaintiffs can completely avoid the problem by moving to that jurisdiction. Businesses have very little power to avoid being sued in judicial hellholes; doctors have somewhat more. If tort reform really makes people worse off, then people will leave the states with reform for the states where the plaintiffs' bar controls one of the three branches.

What bothers the ATLA-ites is that consumers have shown that they prefer tort reform, and the benefits tort reform brings: judicial hellholes are consumer hellholes, because we all bear the costs of runaway litigation and its effect on the economy.

I didn't get the sense that the blogger was ridiculing the hellhole appellation, as opposed to trying to liven up yet another account of a mundane fact-specific remand that won't create any new precedent. (Indeed, it appears most of the entries are centered around puns.) Also, none of the parties was named AC/DC.

[Evan]

Ted: You caught me in a factual error: in the post I linked to, I misread "none of which were known by the acronym of 'AC/DC'" as "one of which was known by the acronym of AC/DC." Idiotic of me, and reason enough to take away my blogging license, or at least require me not to post so early in the morning.

I agree with you that the blogger I linked to wasn't "ridiculing the hellhole appellation" but was merely livening up his account of a dry case. As I put it, he was failing to take the judicial hellhole slur with a perfectly straight face. His face was straight, just not perfectly straight. Get it?

I stand by the rest of the post. Tort reform can make people worse off without being so bad that they want to move to another state. Besides, many people wrongly believe tort reform is mostly about sticking it to lawyers, not realizing it's also about sticking it to ordinary people by curtailing their legal rights or their access to the courts. I don't blame anyone for missing the point. It's easy to be distracted by the wrong messages, for example, the billboards that say "Please Don't Feed the Trial Lawyers." Who wants to feed a trial lawyer? So the ordinary person supports tort reform and, perhaps, never figures out his mistake. Those who do figure it out often figure it out too late, that is, after they've been injured, become involved in a dispute with a corporation, whatever.

[Ted]

Keep telling voters they're stupid for preferring reform of a corrupt and broken judicial system, and that will surely win them over.

[Evan]

Ted: Did I say anyone was stupid? I don't think so. But I'm going to watch out for that implication just in case, because it's certainly not what I think.

[noah]

Somehow there needs to be a way to communicate that people get hurt and otherwise shafted because complanies were able to make a statistical decision to cut some corner. With less liability the scale is moved to allow more cut corners.

Most people won't care unless they feel "there, but for the grace of God, go I."

[Matt]

Ted,

Your clients are certainly on the winning PR side of this battle right now, and for that you should be justifiably proud. You do a heck of a job as a PR advocate for them.

However, your clients have a tendency to overplay their hand, and so as always, the pendulum will swing back. Maybe you'll be retired by then - and hopefully not to a judicial hellhole!

One thing though, considering how "broken and corrupt" our system is, your clients sure do use it a lot! Maybe you meant the Australian, Canadian or British system? I can never be sure, what with all those foreign cases you talk about on Overlawyered while you're "chronicling the high cost of our legal system". Do you have citizenship in multiple countries? Or does the "our" in "our legal system" merely reflect that you are a true citizen of the world?

[The Guide to Getting More Out of Life]

"consumer hellholes" I like it. Excellent way to frame the issue. Tort reform is so far out of hand right now.

[Deoxy]

"Tort reform is so far out of hand right now."

What planet to YOU live on?!? I'd like to move there!!

When cases that are outright silly are settled because it costs too much to defend against them, there is something seriously wrong. When such cases manage to actually WIN, well, it's time to find another place to live.

Go to Overlawyered for some of the increrdible-yet-true accounts of our "reform is out of hand" legal system (such as the guys who used an outdoor carpet glue indoors, then sued when it caused an explosion when the water heater kicked on... despite acknowledging that they had read the large print warning on the front of the can NOT TO USE IT INDOORS! Just one example of among MANY).

Matt - not using the system, no matter how broken and corrupt it is, is simply surrendering to those who DO use the system. One can both use the system and believe that the system is broken and should be changed at the same time without being hypocritical. Now, stating that a crtain practice is unethical and performing said action is hypocritical, but that's not (necessarily) what's going on.

[Matt]

Deoxy,

By all means, what is going on when businesses file nearly 3x as many lawsuits as individuals? Are they that afraid of surrendering that they're going overboard the other way? After all, they can go to arbitration if they like, can't they? Why do they keep coming back to the jury system?

It's a mystery, isn't it? Oh, and if you have the names of any insurers who will settle bogus lawsuits for lots of money? I keep getting the wrong ones, apparently.

[Eh Nonymous]

As per usual, Evan and Ted are persuasive and self-righteous - possibly both with reason - but there's a failure of communication.

Since I'm on Evan's "side," it's hard to consider his position objectively. I suppose that if we made noises like recognizing the possibility of the existence of abuse (as by venue rulings which are somehow unfair to a repeat-playing, sophisticated defendant with the best lawyering money can buy, but not to an unsophisticated, unincorporated plaintiff represented by a repeat-playing, sophisticated plaintiff's lawyer....) -- but I think we've done that. "Point to real abuse, and let's change A rule - one rule - to deal with that real abuse. If we even need to, and it's not just the appearance of bias that's being complained of."

But Ted, you don't even seem to acknowledge why plaintiffs' lawyers feel the system is rigged.

Heavily.

Not in our favor.

If you did ERISA work like I do, and you'd ever read the kind of decisions that come out of the 8th Circuit on ERISA 502(a)(3) remedies, or seen what the lower courts in all circuits have done with the Supreme Court's Great-West v. Knudson despite clear prior Supreme Court precedent, then you'd know why we feel the system is rigged.

The employers have it all sewn up, under ERISA. They draft the bills, they buy the lobbyists, the Congresscritters roll over. Do you think ATLA is going to be getting behind ERISA class action lawyers (who want strong federal remedies) when they oppose the "tort reform agenda"? There's no unity of interest there.

And ERISA matters. What are citizens scared of? Getting hurt, their families getting hurt - and not being financially secure.

The rape&pillaging of Americans' health and welfare benefit plans (not to mention the mismanagement or termination of traditional pensions) has devastated the longstanding deal. There's no trust anymore. Companies are concerned about their bottom line, and what they owe their employees and retirees goes out the window.

And who do plaintiffs go before? By and large, it's Republican appointees. And what happens? No remedy. No breach. No worries. Rights without remedies, no real rights. It's a slaughterhouse.

I'd love to be able to support ERISA reform. Unfortunately, the people who would be rewriting it today would be the Jack Abramoffs, not people of good will.

I don't know if your points apply to consumer torts. I don't work in that area. But frankly, your failure to acknowledge the pervasive, devastating bias against plaintiffs with potentially meritorious claims is disheartening.

[Truthdetector]

Last year’s largest jury award came in the securities fraud case brought by Coleman, the camping gear company owned by Revlon Chairman Ron Perelman, against Morgan Stanley. In May, a Florida jury awarded Coleman more than $1.44 billion in total damages, including $850 million in punitives.

Another 16 are contract or biz cases.

I'm not seeing any discussion of reform in those areas, am I missing something?

[JR]

Ted writes: "Unfortunately for Evan, there will never be a proper analogue; in these hypothetical "hellholes", even if they exist, consumers that prefer a court system unfairly biased towards plaintiffs can completely avoid the problem by moving to that jurisdiction."

[Begin sarcasm]
Hey Honey -- let's sell the house and take the kids out of school so we can file suit in a more friendly forum! After all, we only considered venue when we moved in here in the first place. [End sarcasm]

[Deoxy]

"By all means, what is going on when businesses file nearly 3x as many lawsuits as individuals? Are they that afraid of surrendering that they're going overboard the other way? After all, they can go to arbitration if they like, can't they? Why do they keep coming back to the jury system?"

Um, relevance? Where did I talk about WHO was doing the suing? Also, who sues doesn't mention anything about relative merits and final outcome.

Another major complaint is that being sued is expensive, no matter the "meritoriousness" of the complaint. Ever heard the term "nuisanc claim"? That's where you claim something silly, then ask for an amount of money that isn't worth defending against. Think about the financial side of that, especially if the plaintiff's lawyers is working on commission (so that the plaintiff has nothing to lose).

"It's a mystery, isn't it? Oh, and if you have the names of any insurers who will settle bogus lawsuits for lots of money? I keep getting the wrong ones, apparently."

No, not really. Arbitration is seldom binding, meaning that the "loser" can usually go on to court anyway, if they want to. As to insurers, go read Overlawyered a bit. There are plenty of examples.

Eh Nonymous,

PLAINTIFFS feel the system is rigged? Um, hello? How much worse does it need to gt before it's "not rigged" anymore?!? Currently, a defendant spends money to defend themselves, while many plaintiffs are on "contingency". Basically, the defendant loses either way, it's just a question of HOW MUCH they lose. This is a VERY strong incentive to settle smaller claims, whether meritorious or not.

TruthDetector,

I'm not familiar with those cases, but in general, I only complain about cases where my BS detector goes off. If the case seems reasonable, and the damages are justifid, then, well, that's a legimate case, whichever way it got decided. There are many such cases. ($850 punitives sems a little... extreme, but I don't know anything about the case.)

The problem is ludicrous claims that result in money. Go to OverLawyered for great examples.

[Matt]

"I'm not seeing any discussion of reform in those areas, am I missing something?"

Lobbying dollars.

[Matt]

Deoxy,

How many lawsuits have you settled with insurers? Meritorious or unmeritorious?

[Deoxy]

So, it is humanly impossible to observe? I have to actually participate before I'm allowed to comment?

I'm sure every woman's rights activist that has NOT been raped would disagree with you. In fact, as a man, I am quite thoroughly against rape, simply from obsrving its effects on women. I guess you're against that, too.

[Ted]

Um, both Walter and I highlighted the Perelman case (Coleman v. Morgan Stanley) on Overlawyered. (Heck, I mentioned it in a PoL post just this week.) So I'm not sure which reformers ignoring that case the anonymous "truthdetector" is complaining about, though I'll agree that it's a remarkably bogus suit and result that we should certainly write more criticism about. I'll do something when the appeal comes down.

Eh's view of ERISA is unfortunately narrow, and doesn't acknowledge the pernicious effects of the widespread liability he thinks is missing. There's a good reason Congress structured it the way they did.

Everything else, I'm ignoring. I have better forums to discuss issues in than in one where Matt persistently trolls with deliberate lies, and Evan permits it.

[Evan]

Ted: You really know how to annoy a guy. First, you draw attention to this comment thread by posting about it on Overlawyered. Then you add some more comments of your own, playing to the audience of readers you sent here. Finally, when your Overlawyered post is moving down the page, you complain about the forum and say you have better places to spend your time.

I don't care if you take your stuff and move to another sandbox. Go right ahead. If I want to communicate with you, I'll do it by email; you can do the same with me. I just don't have enough time to dissect each and every comment in order to make sure your feelings aren't in danger of being hurt. Besides, I didn't think it was necessary: I wrongly thought that if anyone were lying about you, whether deliberately or otherwise, you'd have sufficient time, will, and experience with the English language to point out the lies yourself. Apparently you were relying on me to be the hall monitor. Sorry, but I have a hard enough time as it is getting the folks you bring here to keep their spitballs aimed at someone other than me; to have to look out for you too is just too much work.

Note to readers: Though Ted is apparently leaving this forum, you can still find him at Overlawyered. Happy reading, and remember to be polite!

[Jeff]

Evan-why so upset?

Every poll I see suggests Democrats are poised for big gains in the fall. With control of either the House or Senate, no more "tort reforms" will become law.

What's more, the US is in secular decline. There will be lots of victims that will need help from plaintiff's lawyers as their standard of living implodes. The pendulum is poised to swing back to populism.

And what about the coming environmental catastrophe of global warming? Lots of money to be made there as well.

I'd think people in your profession have a very bright future indeed.

[Matt]

"So, it is humanly impossible to observe? I have to actually participate before I'm allowed to comment?"

Not at all. You keep claiming there are all these nuisance settlements, and given how hard a time I have getting insurers to pay legitimate claims, I'm just wondering if you can point me to the easy money.

[Matt]

Ted,

You flatter me too much. Please bring your ball back!

[darren]

I'm against lawsuit abuse, personal or corporate. I'm against rape. And I'm against the illusion of influence that blogs offer to stay-up-late-at-night-with-no-friends losers.

Boyz, you need to acknowledge the fact that we in the United States spend more than 10 times as much suing one another each year than do folks in the world's second-most litigious industrialized nation (Germany). If you think that's gonna make us more competitive on a global basis or help provide a better standard of living for those American workers and consumers you claim to be concerened about, you're out of your ill-informed, left-wing, anti-corporate minds.

Turn off your computers right now and step out into the natural light of day (or night), fellaz. Go find a nice girl to slow-dance with and gently kiss. Urge everyone you meet to start taking full responsibility for their consumer and behavioral choices. And stop whining and looking to sue someone every time your choices turn out bad.

[Matt]

"Boyz, you need to acknowledge the fact that we in the United States spend more than 10 times as much suing one another each year than do folks in the world's second-most litigious industrialized nation (Germany). If you think that's gonna make us more competitive on a global basis or help provide a better standard of living for those American workers and consumers you claim to be concerened about, you're out of your ill-informed, left-wing, anti-corporate minds."

And yet, we have the most dynamic economy in the world and the highest standard of living in human history.

Considering businesses sue 3x as often as individuals, perhaps you should post this on the U.S. Chamber of Commerce website. Maybe all those businesses know more about what makes them competitive on a global basis than you do. Or maybe they are just ill-informed?