The U.S. Chamber of Commerceâ€™s Institute for Legal Reform just released the latest version of the propaganda piece it started publishing in 2002. Entitled 2015 Lawsuit Climate Survey: Ranking the States, the report summarizes the answers of a â€śnationally representative sample of 1,203 in-house general counsel, senior litigators or attorneys, and other senior executives who are knowledgeable about litigation matters at companies with annual revenues over $100 millionâ€ť who responded to what it calls a â€śsurvey.â€ť The so-called â€śsurveyâ€ť does not, however, show what these people really think.
Everyone taking it knows that its purpose is â€“ as it has been for the past 13 years â€“ to give big business a basis to smear state court systems that arenâ€™t pro-business enough as â€śjudicial hellholesâ€ť and push all state courts to limit corporate liability for wrongdoing.
Even so, the answers provide some extraordinary information.
First, Corporate Americaâ€™s representatives say that state courts are increasingly better for them.Â Consumer, worker, environmental, and civil rights advocates would agree. As the report says, in the 13 years since the so-called survey began, â€śthere has been a general increase in the overall average scoreâ€ť given to state court systems by lawyers for big business â€“ â€śand this trend continues with the 2015 survey.â€ť
â€śFrom 2002-2006,â€ť the report finds, â€śthe overall score averaged approximately 52.9, whereas from 2007-2015, the score averaged approximately 59.6.â€ť Chart 2 of the report gives the details and shows that the score given by big businessesâ€™ lawyers to state court systems has gone up almost every year. In 2003, Corporate Americaâ€™s lawyers gave the state courts a score of 50.7; in 2015, they gave them a score of 61.7.
Since this is supposed to be the views of one side in an adversarial system, wouldnâ€™t a score close to 50 be ideal? The Chamberâ€™s propaganda campaign (backed by corporate lobbying, campaign donations, and decisions like Citizens United) is plainly working. I understand that, in theory, a system perceived to be fair by all parties should get a score of 100 from everyone but, remember, this was a â€śsurveyâ€ť taken by specific people of specific people for a specific purpose: to push the state courts in the corporationsâ€™ favor. You could reasonably expect a court system that got a score of 100 from these participants to get a score of zero from lawyers trying to hold big businesses accountable for breaking the law.
Second, even in a â€śsurveyâ€ť designed and taken to show that the state courts are biased against big business, half of Corporate Americaâ€™s lawyers say the state court liability systems overall are â€śexcellent or pretty good.â€ťÂ Another 41% say the systems overall are â€śonly fair.â€ťÂ I thought the goal was for them to all be â€śfair.â€ťÂ But perhaps thatâ€™s why Iâ€™m a public interest lawyer, not a lawyer for big business. Despite the reason for the â€śsurvey,â€ť only 8% said the systems overall were â€śpoorâ€ť (the last 1% was not sure or declined to answer).
In other words, despite what the â€śsurveyâ€ť is intended to show, it actually shows that the state court systems overall are viewed by Corporate Americaâ€™s lawyers as significantly better for big businesses than they are for the people and companies suing them.Â Can you imagine the cries of bias we would hear if a survey showed legal services, consumer, and workersâ€™ lawyers saying the courts were â€śexcellent or pretty goodâ€ť for them (much less â€śonly fairâ€ť) in lawsuits against big business?
Third, Corporate Americaâ€™s lawyers give grades between A and F to each of the state court systems and say where they do and donâ€™t like to be sued. In a stunning and continuing display of arrogance, they actually include a map of the â€śBest to Worst Legal systems in America.â€ť The map was apparently created in Bizarro World. They give As to 14% of the state courts, Bs to 38%, Cs to 27%, and Ds to 11%. In other words, even according to these â€śsurveyâ€ť respondents, 90% of the state court systems are passing. They give failing grades, Fs, to 5%. The other 5% were not sure or declined to answer. These answers, too, put the lie to Corporate Americaâ€™s claims that state courts need to be more favorable to them. If anything, they show that many state courts are already far more favorable to big businesses than they are to those trying to hold big businesses accountable.
The â€śsurveyâ€ť respondents also took the time to tell us which statesâ€™ courts are the most, and least, favorable to Corporate America. The top five states, according to them, are Delaware (often called a subsidiary of DuPont), Vermont, Nebraska, Iowa, and New Hampshire. See any states in there with a lot of minorities and poor people who might not look kindly on big corporations abusing their power? The bottom five states, they say, are West Virginia, Louisiana, Illinois, California, and New Mexico. Ask yourself the same question. I question some of these rankings. Most plaintiffsâ€™ lawyers would list the Texas state courts as one of the most pro-business in the nation. But maybe the stateâ€™s so big that they donâ€™t want to admit that. The states they rank highest are all fairly small.
If you want to figure out which states have juries most likely to hold big corporations accountable, try reversing the order. These are the states the Chamber of Commerce regularly uses this â€śsurveyâ€ť to label â€śjudicial hellholes.â€ť In reality, however, a â€śhellholeâ€ť for corporations violating the law may be â€śheavenâ€ť for those seeking justice against businesses that cheat or injure consumers (for more on this, click here).
What we need in America are state and federal court systems that are fair â€“ and biased in no oneâ€™s favor. Unfortunately, the Chamber of Commerceâ€™s latest propaganda piece shows we are far from that goal and, for some time, things have been getting worse. Big businessesâ€™ own lawyers say that state court systems have turned increasingly in Corporate Americaâ€™s favor since the â€śsurveyâ€ť began.
This needs to stop. Our courts systems need to turn back to being even-handed. Thatâ€™s the only way justice can be done.
This blog originally appeared on Public JusticeÂ on SeptemberÂ 17, 2014. Reprinted with permission.Â
About the Author:Â Arthur H. Bryant, Chairman of Public Justice, has won major victories and established new precedents in several areas of the law, including constitutional law, toxic torts, civil rights, consumer protection, and mass torts.Â The National Law JournalÂ has twice named him one of the 100 Most Influential Attorneys in America.