One of the most significant battles in the upcoming legislative session will be over legal reform in West Virginia. Republicans and business interests have been pushing that agenda for years, but now they finally have a majority in the legislature to make it happen.

Incoming Senate President Bill Cole (R-Mercer) said recently on Talkline all you need to know about his position. He told me he agreed with the assessment that West Virginia is a “judicial hellhole” and he promised that tort reform would be the top of the GOP agenda in January.

The struggle over whether West Virginia should have judicial reform will take place on several levels.

The organization Citizens Against Lawsuit Abuse has generated a high profile campaign for years identifying West Virginia as a trial lawyer’s gold mine where “jackpot justice” is discouraging business. This past week, CALA issued its most recent report.

“West Virginia’s legal system is once again ranked a ‘Judicial Hellhole’ according to the American Tort Reform Association, which released it’s annual legal rankings today. This year West Virginia moved up the list to number three on the ‘Judicial Hellholes’ rankings,” said a CALA release.

Meanwhile, the West Virginia Association for Justice—the state’s trial attorneys—continue to fume over what they say is CALAs false representation of the state’s justice system. Organization President Anthony Majestro, appearing on a recent Talkline, picked apart CALA’s allegations point by point.

However, the trial lawyers have a serious problem here. The perception of the state as a “judicial hellhole” has already been established. The West Virginia Association for Justice’s understated response over the years let CALA set the agenda.

The trial bar has failed to explain to West Virginians why it is in their interest to hold insurance companies and corporations accountable.

The advocates for reform—CALA, the state Chamber of Commerce, Republican leaders—are reportedly going to tackle the issue this session with not one, but rather a series of bills attacking different aspects of the civil justice system, such as an intermediate appeals court and damage caps.
The trial bar has enough influential members that it can, if it chooses, work the halls of the capitol and lobby individual lawmakers to try to slow the tort reform train. The public perception of the trial attorneys may be the larger problem. How do they convince the public that West Virginia is not a “judicial hellhole.”

For that challenge, they need a savvy public relations campaign, not a lawyerly response.

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Comments

  • Barry Bledsoe

    Of course the trial lawyers are going to disagree and fight this with everything they have! Any judicial reforms will hit them where it counts...in their fat wallets! Lawmakers who are also trial lawyers make sure that they make laws which protect THEIR interests, not the interests of WV taxpayers and businesses. This is easily seen simply by looking at voting records in just the last several sessions.

  • to the victors

    To the victors belong the spoils. Its obvious the voters knew this was part of the Republican platform. I'm unsure why all the teeth gnashing? I can't believe the democrats and lawyers are surprised? I'm for change, nobody is taking away anybody's rights? Laws change all the time. The state has a horrible reputation and many businesses that do most of their business in wv are located across the river in Ohio and virginia due to the benefits ie less taxes etc. I'm for change. We are last in everything . What we have done hasnt worked.

  • kc61

    Regardless of how any of us voted this fall, there is a much more pressing issue: all should give serious thought and reflection before we give our rights away so lightly.

  • Ron from Morgantown

    What Hoppy is really try to say to the trial lawyers is .... " Buy some time on WVradio ! " .....

    • The bookman

      Ron,

      I think Hoppy accurately makes the point that the Trial lobby has benefitted from the safety of Democrat Majorities, and have allowed themselves to be painted in poor light knowing CALA and Tort Reform proponents could not advance their agenda.

      They must now do the heavy lifting of changing the public, and national, perception of WV being a poor place to do business. It matters not if we are or aren't a Judicial Hellhole. If the perception is that we are, then the damage has been done, and remedy must be made.

      • stophating

        @Bookman

        You are away that CALA is not a citizens group in any way, shape, nor form?

        It is a fake organization started by wealthy individuals that want to take away everyone else's rights to access the court system.

        • Barry Bledsoe

          I am a member of CALA, as a resident of WV and a taxpayer, not as a wealthy individual.

          It is not a fake organization designed to take away everyone's right to access the court system. It is a group designed to ensure fairness to ALL involved.

        • The bookman

          I am aware that any organization who engages in political debate is reflective of the financial resources of their donors. Claiming to be a grassroots organization doesn't make you one. Pick your organization from either side of the spectrum and you will find the same thing, whether it is CALA or the Sierra Club. Money talks.

          The question is, "Does that matter?" The issues they raise are valid, and merit an open discussion. What we have always heard are the accusations from CALA about the shortcomings of our judicial system, followed by the Hellhole proclamation. No real rebuttal from the Plaintiff perspective, just a quick count of the votes in the room to ensure the talk goes no further than the proclamation. Let's have the debate.

      • liberty4all

        Just remember where the perception comes from. Those who propose change to enable them to make more even more money at the expense of those would be harmed by them start front groups like CALA and ATRA, who in turn put out studies which they can turn around and site as the reason for change.

        Reminds me of the cows in the Chick Fil A ads who encourage everyone to eat more chicken.

        There are a host of reasons businesses don't come here, the least of which is our justice system. If the new leaders want to make the least of these reasons their number 1 priority, we're in for more of the same. Sound and fury, signifying nothing.

        • The bookman

          I would say that this argument, like most, has merits on both sides, with room for improvement found in the less extreme position of reform. If our criminal courts can accept sentencing guidlines, our civil courts should be able to accept limitations in award.

          This is certainly low hanging fruit, and revenue neutral, which is reason enough to propel it forward given the budget situation. I would also say it is certainly time to have a mutual conversation about judicial reform. And finally, if the Legislature reaches too far, the Governor still has his veto. Two party rule. The sky is not falling.

          • In da stickes

            After all, how many private jets does Scott Segal need?

      • Ron from Morgantown

        Actually what they ( trial lawyers ) need is a campaign to soften their ( trial lawyers ) image with the public . Hellhole is an unfair manipulation of public perception of trial lawyers ; not on a perception of WV's business climate . Either way trial lawyers need a campaign that can explain the inaccuries of "Hellhole" in a way that the masses can appreciate . They have the resources to run an effective campaign if they choose to do so .

  • Ron from Morgantown

    Please remember this in 2016 - take back the House and Senate !

  • GregG

    Sounds about right. These damn republicans will stop at nothing to force the working middle class back into slavery. They would love nothing more than to allow big business to return to the days of company housing, company stores, company doctors and paying employees with scrip.

    • reality check

      sarcasm, i hope

    • GregGisfunny

      Yes Greg,
      I'm sure that's exactly what's going to happen. You so funny.

      • GregG

        Time will tell.

  • Keith Conner

    Merry Christmas, Hoppy!

    Keith Conner
    WOAY-TV
    News Director

  • joeyjojo

    States rankings on the judicial hellhole list have NOTHING to do with the judicial system. They are directly porportional to the amount of influence groups like CALA think the list can have on legislation. i.e. WV is high on the list because the Chamber of Commerce cronies think WV'ians are dumb enough to give away all their rights so we wont be a "judicial hellhole" any more.

    jackpot justice *squawk* jackpot justice *squawk*

    • Hop'sHip

      Hey, we are suppose to be almost Heaven, not a hellhole. Give those nice Chamber people whatever they want. I'm sure they have the best interests of the people at heart.

    • stophating

      @joeyjojo

      You are brilliant! Comment is spot on!!!! Unfortunately too many people in WV believe this nonsense.

    • Mason County Contrarian

      You are right on the Mark.

      Republicans AND Democrat Fatcats both surrender to Special Interests once again.

      One man's "hell-hole" is another man's justice.

      I thought it was all about "jobs, jobs, jobs"?

  • consumer1

    Remember Joey Manchino's tort reform - pass a law that you can't sue an insurance company for treating you unfairly? The promise was that insurance premiums would go down. Have your premiums gone down?

    • wirerowe

      As I recall indeed auto insurance premiums went down nicely after the tort reform legislation that passed around 2005.

      • vashti

        yours must have been one of the few wire. mine went up and i don't recall anyone i am aquainted with whose premiums went down.

        • wirerowe

          Based on current rate comparisons across the states you must be right. But I swear that I recall rates going down after the tort reform legislation.

  • Ron from Morgantown

    i can give you a billion reasons why we are not a judicial hell hole . Here's all the proof you need ........Last November, West Virginia Gov. Earl Ray Tomblin announced that Odebrecht would explore the possibility of building a $3.8 billion cracker facility in the state, including water treatment and co-generation infrastructure (see Shale Daily, Nov. 14, 2013). The plant would process ethane produced in the Marcellus and Utica shales into ethylene and polyethylene for plastics. .......A 4 BILLION dollar investment IN Wood County . If we were a judicial hell hole - this company would have simply gone 2 miles across the river and built in Ohio . Enough said .

    • Harvey

      AND, Toyota Motor Manufacturing has expended production several times in Putnam County while Diamond Electric just announced the move of its North American headquarters to Eleanor. Good schools, good roads and stable environment mean a lot more than lawsuits. Punitive damages can be limited without much harm to 99% of litigants. Tweek the rules for suits over discharge from employment. Extend the statute of limitations for most injury claims. Beef up the remedy for insurance bad faith in the administrative law side and appoint or elect insurance commissioners who care as much for the consumers as the companies and a lot of this so called "frivolous" litigation will go away.

  • Wirerowe

    This hellhole discussion is very vague and confusing. I think West Virginia coukd do one thing to improve our legal climate and bring it up to date. A number of states either prohibit the awarding of punitive damages or cap the punitive damage at a dollar figure or a multiple of compensatory damages. I think that we shoukd cap punitive damages or tie it to a multiple of compensatory damages like Virginia or North Carolina does. Let's do that and quit worrying about the hellhole label.

    • Harvey

      Wire,

      You know, Wire, that could be done without impairing the rights of innocent injured people to pursue a remedy acceptable to a jury of their peers. Punitive damages are quite rare in West Virginia, but make headlines out of all proportion to their frequency. This is a good idea for the legislature to consider. What we do not need is an expensive intermediate court of appeals. To do it right will cost millions on millions of dollars. To do it wrong will cost just as much in delay and uncertainty. A waste of money either way. Ask the Circuit Judge in your area for his or her thoughts. The new appellate rules seem to work and every case gets an opinion it is just that every case is not heard on oral argument. That is the same procedure followed by federal courts of appeal.

      • Ron from Morgantown

        Two thumbs up

  • Medman

    It will take a crisis similar to what happened with healthcare tort reform a few years ago before anything meaningful will happen. Prior to that reform, the problems with medical malpractice were crippling the system to the point that we could not recruit health professionals and the number of frivolous lawsuits was obscene. We have a model that has functioned very effectively for several years in health and we need to learn from that and do the same in the private sector.

  • CaptainQ

    Unless I miss my guess, Hoppy, I say there's very little chance for any true judicial reform bills to make it past Governor Tomblin's veto stamp in this legislative session. For some strange reason, the WV Democrats LOVE our current broken judicial system just the way it is, otherwise they would've tried to fix it during their 80+ year virtual stranglehold on power in the Mountain State.

    Will Earl Ray behave like the Democrats' last 'line of defense' against any GOP-led meaningful reforms (not just judicial reform)?

    We shall soon see....

    • mamasita

      Can't imagine why the Dems love the current system. It couldn't possibly be that they profit nicely from trial lawyer contributions. They're a team.
      Perception is a problem. We need a vocal and visible change.

    • Levelheaded

      It is my understanding that Governor Tomblin can only veto budget and spending bills. I may be wrong.

      • Ron from Morgantown

        Yes - you are wrong . Just last year he vetoed the abortion bill . And a few years back he vetoed a bill that increased fees at the DMV ( just to mention a few) .

        • stophating

          He can veto anything, but WV Constitution only requires a simple majority vote of both houses to over-ride his veto.

          So any bill that passes with fifteen or more days remaining in the session can and will face a veto override.

          • CaptainQ

            The Democrats have been ruling WV for a long, long time. If there's some kind of loophole the Governor can use to veto these bills in such a way they can't return to the Legislature for an override vote, they'll FIND IT!

  • Shadow

    A Loser Pays System would be a good start.

    • Harvey

      Shadow,

      Be careful what you wish for. Most plaintiff lawyers would feast on a loser pay system. The issue of cost and attorney fes would be injected in most cases. Settlements would slow down, cost go up and suits filed increase. If this was a good idea it would have taken hold elsewhere in the US. It is just a lot more complicated than you seem to think. We will see how thoughtful the legislature is. I suspect there will be some changes but nothing radical. People who are injured by the negligence or intention of others have a right to seek redress, just like big corporations have a right to collect a bill, enforce a contract, etc. in the meantime, have a good Christmas

      • Shadow

        Maybe just enough to keep the ambulance chasers away by better definition of frivolous lawsuits.

        • reality check

          except judges and juries in this state don't seem to think that there is such a thing as a frivolous lawsuit

          • Harvey

            Well, the judges see the entire case from beginning to end and the jury sees the evidence presented. They certainly should be the best equipped to see frivolity if it exists. The fact is that the opponents of the rights of the injured do not want to stop baseless suits that, if filed, net the parties and the lawyers nothing. They wish to limit the rights of those who have been seriously injured by negligence or product defect. People who are seriously hurt are not "frivolous." If anyone believes in "jackpot justice" ask them if they want to buy a lottery ticket where the prize is injury or death of a loved one. You will not get many takers.

  • smokey

    Hoppy,
    Before the state GOP legislates a knee jerk reaction to this, they might wish to consider the objectivity of the report. It is, after all, issued by the American Tort Reform Association. The most recent legislation in this area put caps on punitive damages and limited third part liability. This is an example of the idea that if you say it often enough a lot of people will believe it. Sort of like how 60 percent of people who voted for George Bush in 2004 believed Iraq was involved in the 9/11/01 attacks. I hope that you will fact check the numbers and explain how the U.S. is really not such a litigious society and that there is not an increase in tort filings. We must be careful to protect the rights of people who are injured by negligence and malpractice. The public is made aware of sensationalized versions of tort awards in the vein of the millions dollars award for the McDonalds hot coffee case. A more thorough review reveals that McDonalds coffee was served about 50 degrees hotter than you brew at home, almost to the boiling temperature and that the plaintiff offered to settle the case for $20,000. McDonalds refused that offer, believing it too high.
    I will agree that West Virginia has long needed an intermediate court of appeals as we are one of only a handful of states without one. Parties, both civil and criminal, should have an appeal of right. The West Virginia Supreme Court of Appeals will undoubtedly resist this again, saying they can adequately review cases. The GOP should review the cost to taxpayers of the additional personnel and facilities versus a perceived savings to big business in reduced court awards to plaintiffs. In other words, how much higher do you want your taxes to be?
    Have a great day and a Merry Christmas.

    • reality check

      sounds like the trial lawyers are out in force on the message board today.

    • MP

      You shouldn't receive a dime for spilling hot coffee on yourself. There is "risk" in just living, but we are conditioning people to believe that anytime something bad happens, they are a victim who is due compensation.

      • Hillboy

        MP, The McDonald's hot coffee case has sort of become the poster child for frivolous law suits. You should take the time to google the actual facts of the case. It's not anywhere near as frivolous as it is usually made out to be.

      • Capt. Obvious

        ...And let a negligent doctor cut off the wrong leg and see how you are affected. Your damages are capped.
        Just pull your legless body on over to the jury box and collect your "Jackpot"!

        • GregGisfunny

          Yes, because that happens every day. Sarcasm

    • Bill Hill

      A Smokey is definitely right on one point. We need some real objectivity. Like the example he gave of the lady scalded by the McDonald's coffee, the story as presented by the talking heads and others was completely misrepresentative of what really happened.