The fairness of a civil justice system can best be evaluated, not in polemic debates or in the lay press, but in the litigation trenches. That is where litigants learn not just what law applies to the case, but how the law is applied - across different jurisdictions, different judges and different jury pools. Shook, Hardy & Bacon (SHB), in its over 100-year history of being primarily a litigation firm, has seen our tort system in operation throughout the country. As a result of this vast experience, SHB lawyers have observed aspects of the civil justice system that need to be improved. That has made SHB an activist for reform - not revolutionary changes that will upend the civil justice system, but necessary changes which will make the system more fair and even-handed.
Accordingly, SHB has long been at the forefront of efforts to institute reforms at the state and federal levels that will ensure our clients are treated fairly in civil lawsuits. SHB attorneys, working with DRI and LCJ, as well as the American Tort Reform Association, the Institute for Legal Reform of the U.S. Chamber of Commerce, the National Association of Manufacturers, the American Legislative Exchange Council, and the Washington Legal Foundation, among others, actively engage in reform debates in many ways.
SHB lawyers file amicus briefs, publish scholarly articles, educate other legal professionals about the issues through CLE conferences and other legal forums such as Webinars, provide informed commentary to the press, negotiate with lawmakers, and testify before legislative committees. Under the leadership of nationally renowned SHB Partner Victor Schwartz, our Washington, D.C.-based public policy group, in particular, leads a coalition of industry interests to develop ideas that will safeguard traditional tort law principles that best protect the rights of defendants facing an onslaught of non-traditional claims and theories which expose them to unprecedented liability.
Our articles and briefs on key public policy issues have been cited in U.S. Supreme Court and state supreme court decisions. State legislatures have passed laws we helped develop and championed, and we are viewed as among those most knowledgeable about a range of cutting-edge issues, such as the use of public nuisance theories against product manufacturers, expanded use of consumer protection acts, lawsuits for medical monitoring by plaintiffs without existing injuries, and protected trade secrets and other proprietary information provided to personal injury lawyers in discovery.
We are active in organizations that can make a difference, notably DRI and LCJ. Many of our attorneys are proud to be active DRI members. SHB Partner Bill Sampson has served as DRI president and on DRI's Board of Directors. I have spoken on civil justice reform throughout the country, served as chair of DRI's Corporate Counsel Roundtable and as a member of DRI's Civil Rules Advisory Committee and am SHB's law firm representative in LCJ. Many other SHB lawyers have given speeches, submitted written support for civil justice reform and have addressed legislative committees on that subject.
Public Nuisance And Other Novel Theories Of Liability
Personal injury lawyers often seek ways to expand the liability of product manufacturers. These initiatives range from no-injury medical monitoring and public nuisance to consumer protection, obesity and pet litigation. State attorneys general and the plaintiff's bar, by advancing these and other initiatives, have been attempting to circumvent well-defined principles of products liability and consumer protection law. SHB lawyers have written leading articles and presented on these issues. They have appeared on national and cable news programs to discuss them. See, e.g., Victor E. Schwartz & Phil Goldberg, "The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort," 45 Washburn L. Rev. 541 (2006); Victor E. Schwartz & Cary Silverman, "Common-Sense Construction of Consumer Protection Act," 54 Kansas L. Rev. 1 (2006); and James P. Muehlberger & Cary Silverman, "Lawsuits Without Injury: The Rise of Consumer Protection Claims," Drugs & Supplements (October 2006). In addition, Victor Schwartz is the only defense attorney in the United States to serve on the advisory committees of all three of the American Law Institute's Restatement (Third) of Torts projects: Products Liability, Apportionment of Liability and General Principles.
SHB has submitted amicus briefs on behalf of a number of organizations challenging the public nuisance theory of liability in lead paint cases filed in Missouri and Rhode Island. When the New Jersey Supreme Court rejected public nuisance claims in lead paint litigation, it cited a law review article co-authored by Victor Schwartz and Phil Goldberg. In re Lead Paint Litig. , No. A-73-05 (N.J. 06/15/07). SHB Partner Mark Behrens analyzed state court decisions rejecting medical monitoring for a Federalist Society publication in January 2007. Behrens is listed by the Insider Guide to Public Policy Experts and Organizations as an expert in the fields of tort and civil justice reform.
Expert Evidence And Junk Science
With clients often facing litigants who intend to prove their claims with unreliable expert testimony, the firm has long recognized the need for reform and, working with the American Legislative Council Exchange (ALEC), a group of more than 3,000 state legislators, helped develop a model act to establish reliability standards for expert testimony. The model act (Reliability in Expert Testimony Standards Act) incorporates key elements of the U.S. Supreme Court's Daubert ruling and would embrace a universal gatekeeping role for state trial court judges to ensure that junk science will be kept out of the courtroom and minimize incentives for plaintiffs to forum shop. On behalf of a number of organizations, Victor Schwartz co-authored with Robert Charrow an amicus brief that first suggested the concept of a "gatekeeping" role under the Federal Rules of Evidence. The firm has also published one of the leading articles on the admissibility of expert testimony and the importance of courts adhering to their proper role to encourage consistency and predictability in adjudication. See Victor E. Schwartz & Cary Silverman, "The Draining of Daubert and the Recidivism of Junk Science in Federal and State Courts," 35 Hofstra L. Rev. 217 (2006).
State Consumer Fraud Act Reform
Working with ALEC, the firm helped draft its Model Act on Private Enforcement of Consumer Protection Statutes. SHB Associate Cary Silverman helped author an American Tort Reform Foundation report directed to state courts and legislatures and urging action, such as the adoption of a model law that would build on the content of California's Proposition 64, a ballot initiative making it more difficult for plaintiffs in that state to bring claims without economic loss or injury.
There have been reported instances where selected documents produced in litigation have been provided to reporters in violation of protective orders. A prime example of such conduct occurred in a mass-tort action where documents relating to the purported health risks of Zyprexa were improperly leaked and led to reports in the lay press.Judge Jack Weinstein, the judge in charge of the Zyprexa MDL, described the actions as "illegal," "stealing" and "reprehensible." Congress is now considering passing legislation that would give reporters a shield from revealing their sources. Such laws fail to balance the rights of corporations to protect confidential information, like trade secrets, and will allow them to lose important rights without holding reporters accountable. Our lawyers, working in conjunction with the National Association of Manufacturers and the U.S. Chamber of Commerce, have provided input to a House committee and are working on developing a Senate compromise that would protect confidential information. Phil Goldberg testified before the Texas Legislature on this issue and successfully negotiated a compromise in that state.
Another aspect of confidentiality that firm lawyers are addressing involves extending attorney-client privilege to material shared with litigation communications specialists. Because high-profile litigation is often shaped and characterized in the court of public opinion, it is becoming increasingly important for lawyers to engage the services of and share confidential communications with public relations specialists who are dedicated to assisting lawyers perform their media-related responsibilities on behalf of their clients. We have published articles on these issues to raise awareness of the need to protect such communications so that high-profile defendants can fairly defend themselves in the court of public opinion and achieve an accurate result in the courtroom. See Phil S. Goldberg, "Litigation Communications in the Age of Trial by Media," For the Defense , January 2005; Steven B. Hantler, Victor E. Schwartz & Phil S. Goldberg, "Extending the Privilege to Litigation Communications Specialists in the Age of Trial by Media," 13 Commlaw Conspectus 7 (2004).
In many states, judges are subject to popular election. Such a method of judicial selection can lead to the infusion of money and politics into the judicial system. In recent years, the cost of judicial elections has skyrocketed as they have become increasingly partisan and contentious. This damages the public's faith in our system of justice and leads to a perception that campaign donations may influence legal outcomes. For this reason, SHB lawyers have published articles comparing various methods of judicial selection and suggested that states closely consider adopting a merit selection system. See, e.g., Mark A. Behrens & Cary Silverman, "The Case for Adopting Appointive Judicial Selection Systems for State Court Judges," 11 Cornell J. L. & Pub. Pol'y 273 (2002). Such a system, when structured correctly, can reduce political influence on the judiciary, assist in selection of the most qualified judges, and lead to a more stable and predictable civil justice system that is not swayed by political winds. Our lawyers have also actively campaigned in individual states to maintain merit-based selection systems as a means to foster an independent judiciary. These campaigns have included letters and essays submitted to the media and trips to state capitols in bar delegations to discuss the issues with legislators.
Improving The Jury Service System
SHB Associate Cary Silverman has served as the point person for ALEC in a number of states, seeking the adoption of ALEC's model legislation (Jury Patriotism Act) pertaining to jury service improvements. The Act is designed to eliminate barriers to jury service and make the system "user friendly" for citizens. In addition to incorporating the best practices of the states, the model act includes an innovative lengthy-trial fund that would provide supplemental compensation to jurors who do not receive their usual income during service and are selected to serve on lengthy trials. Such legislation has been adopted in whole or in part in 14 states: Alabama, Arizona, Colorado, Indiana, Louisiana, Maryland, Mississippi, Missouri, New Mexico, Ohio, Oklahoma, Texas, Utah, and Vermont.
With the director for the Center for Jury Studies at the National Center for State Courts (NCSC), Silverman co-authored an article detailing the success of the reforms in Arizona one year after implementation. G. Thomas Munsterman & Cary Silverman, "Jury Reforms in Arizona," The Judges' Journal , Winter 2006. The study found that the reforms are effective in reducing inconvenience to jurors, expanding the opportunity for people to participate and increasing juror turnout rates. In addition, the firm has supported the NCSC's "National Program to Increase Citizen Participation in Jury Service Through Jury Innovations" with the goal of obtaining more representative juries and better-informed trial jurors. We have also published articles on how to specifically improve the jury-service system in eight states as well as authored a July 2003 For the Defense article detailing the importance of jury service reform to the defense-counsel community. Paul W. Rebein & Cary Silverman, "Full Participation of Citizens in the Jury System."
SHB believes in ensuring that our civil justice system is governed by fair laws and processes. Working with the American Tort Reform Association, our public policy lawyers developed the Judicial HellholesTM Project, which produces an annual report pinpointing courts in the United States where equal justice has been difficult to achieve for defendants. The project has been credited with helping to improve the litigation climate in both Madison County, Illinois, and several counties in Mississippi that overcame their Judicial HellholeTMstatus. In addition, Victor Schwartz serves as co-chair of ALEC's Civil Justice Task Force and as general counsel to the American Tort Reform Association. Mark Behrens is co-chair of the Federalist Society's Tort and Product Liability Subcommittee. It is through these and other initiatives that the firm has helped create many of the tort reforms that are now the law in many states. We are working to improve civil justice in all jurisdictions.
Published November 1, 2007.