Editor: At Bethlehem Steel were you involved in any of the civil justice reform efforts to correct some of the problems with the tort system?
Graham: From the time I started with Bethlehem in 1977, I was the attorney principally involved in state and federal civil justice reform efforts and I remain active in efforts on both levels. In Pennsylvania, I was the chairman of one coalition and on the board of another for years.
Editor: There is an increased amount of activity on the part of law firms, not only to be concerned about defending a particular tort action on behalf of a client but also to get involved in trying to improve the civil justice system. Do you see the firm getting involved in that area on behalf of clients?
Graham: Yes, there has been increased support from the firm individually and through association with other reform-minded groups, such as the Atlantic Legal Foundation and Lawyers for Civil Justice, with which I have worked for the past several years. Connell Foley has always taken an active role in trying to improve the delivery of justice and the practice of law with many members having assumed leadership positions in local, state and federal associations. I will personally continue my efforts to ensure that my clients have the opportunity to litigate on a level playing field.
Editor: What aspect of tort reform do you consider most critical today?
Graham: Unfortunately, there remain a large number of issues that need to be addressed. Some issues, such as class actions or asbestos, can be addressed through federal legislation, but there is a limit to what can be done through federal legislation or rule changes. Most of the issues will still need to be addressed at the state level through comprehensive or targeted legislative efforts and through efforts to alter the makeup and philosophy of the courts in the problem jurisdictions.
Editor: Comprehensive tort reform legislation has been adopted in such states as South Carolina, Missouri, Texas, Georgia, Ohio and Mississippi. This legislation is part of an effort by corporations to limit exposure to excessive damages and litigation costs. How important has such legislation been in achieving these goals?
Graham: It is extremely important. Some of the most serious problems in the civil justice area will only be effectively addressed at the state level. There is much needed reform legislation currently pending in a number of states and we have seen a number of successful state efforts in recent years. Mississippi is a good example. For a number of years it was recognized as the worst of the judicial "hell holes," jurisdictions that presented particular civil justice problems for businesses. The federal class action reform legislation which was passed recently only addressed a small part of the problem in Mississippi. Through a concerted awareness campaign, the public and the legislature were made aware that the state's poor reputation as a venue for business was a serious economic development issue because companies naturally avoid locating or doing business to the extent they can in problem jurisdictions. As we have seen in the asbestos litigation, when a company is crippled by litigation, the result is a loss for the employees, the communities where the companies are located, the company's suppliers and customers and the company's stockholders, which includes a lot of people today through their retirement plans. As a result, tort reform legislation was successfully passed, and the balance of the elected state supreme court was changed, bringing about much needed reform of the civil justice system.
Editor: I presume that Alabama is still lagging Mississippi.
Graham: Alabama has also been one of the problem jurisdictions, but we've seen some positive developments there as well through a similar public awareness campaign. As in many jurisdictions, however, the opportunity for further improvement of the civil justice system remains.
Editor: Some courts are applying outmoded legal principles in trying cases and in failing to instruct juries in such matters as taking into account bona fide compliance efforts, the consequences of joint liability, etc. Does your firm make an effort to convince courts to change outmoded and unfair legal principles in filing amicus briefs?
Graham: We do that on a case by case basis in representing the interests of our clients. We also look for amicus opportunities and work with reform-minded groups, such as the Atlantic Legal Foundation on whose board I serve. The ability to affect change, however, is constrained by the makeup and philosophy of the courts in a given jurisdiction. The most positive changes for business in recent years have come in the states where public awareness campaigns have effected a change in the makeup and philosophy of the courts, principally where the courts are elected. This also underscores the value of and need for legislative efforts where the opportunity for change through the courts is limited.
Editor: What are your views about the proposal in New Jersey to create a business court?
Graham: Both the firm and I have generally supported the creation of a business court. It has worked well in a number of other jurisdictions, and I believe that it would be beneficial in New Jersey as well. It would place commercial matters before a special court with judges who have experience and expertise in dealing with these matters. It is an innovation that has broad support generally by the business community, subject only to the particular approach used in the business court.
Editor: Are the lessons of Daubert being adequately reflected at a state and federal level to the extent that the courts are still dealing with junk science?
Graham: There has been some positive change, but there are still far too many cases that are being supported solely by the opinions of career expert witnesses which find no verifiable scientific support. Daubert and its progeny, which the Atlantic Legal Foundation successfully participated in supporting, have brought positive change in the federal courts and in the state courts that have adopted Daubert 's principles. I think that further improvement can be achieved by persuading additional state courts to adopt the Daubert approach and to effectively exercise their gatekeeper function under the Daubert principles on a case by case basis.
Editor: There are some who advocate that expert testimony should be considered only by a judge, not the jury.
Graham: As a practical matter, we are not going to see that happen. There is a firm belief in the right to bring a case to a jury and have it decided by them. The ultimate decisional function will be left to the jury in most cases. Daubert attempts to have the courts exercise their gatekeeper function so that ultimately the jury is deciding the case based on expert opinion which is supported by sound science.
Editor: What about the misuse of electronic discovery? Is there an exposure to unreasonable penalties for perceived lack of cooperation? Will the proposed changes in the federal rules help?
Graham: This is a one sided weapon that has been used unfairly by the plaintiff's bar against companies both through unreasonably onerous and costly requests for electronic data and through fabricated spoliation claims. It is often used by the plaintiff's bar to obtain settlement leverage or tactical advantages which have nothing to do with the merits of the case at issue. The proposed federal rule changes would help, and we have begun to see some more favorable decisions from the courts where defense counsel has done an effective job of explaining and demonstrating the unfairness of these tactics to the courts.
I participated in a program of the National Center for State Courts last year on this issue. The participating state supreme court justices made it clear that more effective argument and education of the judiciary by the defense bar on a case by case basis was the key to obtaining a proper understanding and handling of the issues by the courts. Unfortunately, in the interim there have been some unfair rulings in some courts. If we fail to achieve the necessary fairness and balance through the courts, this will be another issue to be addressed through reform legislation.
Editor: Asbestos cases are of particular concern to many corporate counsel. Federal legislation is being considered to address this issue. Do you feel that legislation is needed?
Graham: The firm and I have been involved in the asbestos litigation issue since the late 1970s and have represented clients on state, regional and national cases. It is a problem of national proportion. We have seen far too many companies forced into bankruptcy as a result of this problem. It is clear to anyone involved in the litigation that the vast majority of the claims today are brought on behalf of people who have no current disability as a result of any exposure to asbestos. There have been efforts to address this issue in the courts, but they have not been effective in addressing the overall problem. There have been successful legislative reforms enacted in some of the states, some of which specifically address the asbestos litigation and others which address some of the problems resulting from the litigation through broader civil justice reform measures. The courts on the federal level have addressed this a number of times and have themselves indicated a need for legislative reform. It appears that legislation is the only effective vehicle for addressing this national problem.
Editor: What is the status today of measures in Congress?
Graham: The legislation has been voted out of the Judiciary Committee in the Senate and is awaiting consideration by the Senate as a whole. There continues to be both strong support and strong opposition to the current legislation. There is also support for alternative legislative approaches. There are arguments from both sides about the pending legislation and particular provisions of it. However, one thing remains clear - that federal legislation is the only way to effectively address this serious national problem.
Published November 1, 2005.
