Lawmakers, Business Leaders Should Demand Discredited Hellhole Attack Stop
Parroting So-Called “Report” Hurts West Virginia Economy and Workers
December 12, 2014
Charleston, W.Va. – The West Virginia Association for Justice today calls on West Virginia lawmakers and business leaders to stop citing the discredited “Judicial Hellhole” report. The so-called report does not provide accurate information on West Virginia’s legal climate and is an unwarranted attack that hurts the state’s national reputation and ability to attract new jobs.
“For more than a decade, the American Tort Reform Association has unfairly criticized West Virginia in state and national media. These are baseless attacks that damage our national reputation and hamper efforts to bring new businesses to our state. Our lawmakers and business leaders should demand these attacks need to stop now,” said Anthony Majestro, president of the West Virginia Association for Justice.
“Parroting this misinformation is what really hurts West Virginia’s ability to provide our workers with good paying jobs. Instead of relying on a corporate-front group’s propaganda, West Virginia’s leaders should rely on independent, third-party data that provides an accurate analysis of our courts and shows that West Virginia is a good place to do business.”
The Truth About West Virginia’s Courts
According to the National Center for State Courts, West Virginia has always been in the bottom 25 percent of states for the number of civil cases filed based on population. In 2010, the last year that data is available for all 50 states and Washington D. C., West Virginia ranked 39th. In contrast, the rankings for surrounding states are: Maryland – 1st, Virginia – 3rd, Ohio – 16th, Kentucky – 22nd and Pennsylvania – 38th
Actual West Virginia case filings continue to decline. There were 4,302 civil cases filed in 2010, and that total declined to 4,098 in 2012 – a decline of 4.7 percent
NCSC data show that on average just 3.5 percent of civil cases are tort cases. In West Virginia that’s just 143 cases per capita in 2012. In Kentucky there were 134, in Ohio 225 and in Pennsylvania 289.
This is not a new trend. A study completed by Richard Brisbin Jr. and John C. Kilwein found that “since the 1980s West Virginia courts—the trial court of general jurisdiction—have not experienced a massive upsurge in non-family law civil litigation.” (The Future of the West Virginia Judiciary: Problems and Policy Options by Richard Brisbin, Jr. and John C. Kilwein, 2007)
Nearly one-third of civil tort cases nationally are businesses suing businesses. This area has increased so dramatically that much of the increase in civil litigation over the last three decades is attributable to businesses having to sue other businesses.
Nationally nearly 50 percent of all civil cases are business v. business contract cases
Appeals to the West Virginia Supreme Court are at a 29-year low, with just 1,319 cases in 2013. Over the last 15 years, case filings have declined from 3,569 in 1999 to 1,319—a decline of more than 60 percent. According to data compiled by the National Center for State Courts, West Virginia’s decrease is four times higher than the national average decline of 14 percent.
More than half of the West Virginia Supreme Court’s filings are in workers compensation, abuse and neglect, and criminal felony appeals.
Civil appeals for tort cases, contract cases and property comprise just 12.7 percent of the caseload.
The Truth About West Virginia’s Economy
According to the West Virginia Department of Commerce’s Edge Business Report for July 2014, West Virginia had the third fastest growing economy in America last year based on the report issued by the federal Bureau of Economic Analysis.
According to the West Virginia Development Office:
- Since 2005, more than $20 billion in new business investments have been made in West Virginia, including more than $6.2 billion just since 2010.
- In 2011, West Virginia had a 4.5 percent increase in gross state product—the third highest rate of economic production growth in the country. In 2012, West Virginia’s gross state product increased 25 percent, more than five times the national average.
- In 2011, West Virginia led the nation in the percentage of growth in exports, reaching a record level of $9 billion—and then surpassed that rate, reaching $11.3 billion in 2012.
- The cost of doing business in West Virginia is 14 percent below the U. S. average
- According to Moody’s, the cost of doing business in West Virginia is the fourth-lowest in the country
- West Virginia is cutting taxes for state businesses. The state removed approximately $126 million in business taxes in FY 2012—and has reduced them by more than $450 million over the last six years. The corporate net income tax rate will drop to 6.5 percent in 2014, and the business franchise tax will be eliminated in 2015
http://www.wvcommerce.org/App_Media/assets/publications/businessworkforce/Business_Climate_Bruchure.pdf
http://newsletters.wvcommerce.org/newsletters/344/issue/Governor-Releases-March-Edge-Business-Report/271/default.aspx
ATRA and Its Discredited Hellhole Attack
The American Tort Reform Association (ATRA) was founded in 1986. While it claims to have “135,000 grassroots supporters” and that its membership is diverse and includes “nonprofits, small and large companies, as well as state and national trade, business and professional associations, the truth is the members are largely Fortune 500 companies with direct financial stake in restricting lawsuits” including “the tobacco, insurance, chemical, auto and pharmaceutical industries.” (Center for Justice and Democracy)
The New York Times reported in 2007 that the report was not a valid analysis—and the report’s authors admitted it. “The question is whether the report’s arguments make sense, are supported by evidence and are applied evenhandedly. Here the report falls short . . . It has no apparent methodology.” In response, ATRA admitted that “we have never claimed to be an empirical study.” (New York Times, December 24, 2007)
“The explicit goal [of the Hellhole Report] is to appeal to the public as voters, to scare state politicians into making pro-defendant changes in the law in order to make the label go away, and to get rid of judges whose rulings made ATRA members unhappy. Judicial Hellholes are selected in whatever way suits ATRA’s political goals. The choice is not based on research into the actual conditions in the courts.” (Elizabeth Thornburg, “Judicial Hellholes, Lawsuit Climates and Bad Social Science,” West Virginia Law Review, Vol. 110 No. 3)
“The point of the hellhole campaign is not to create an accurate snapshot of reality. The point of the hellhole campaign is to motivate legislators and judges to make law that will favor repeat corporate defendants and their insurers, and to spur voters to vote for those judges and legislators who will do so.” (Judicial Hellholes, Lawsuit Climates and Bad Social Science: Lessons from West Virginia, p. 3)
An Illinois judge ruled that the Hellhole report was part of a PR strategy to damage courts and aid a defendant. Judge William Mudge issued an order which disclosed that Syngenta Crop Protection Inc., a defendant in a pending water pollution case, and its Chicago public relations firm developed a prejudicial PR campaign based on the Judicial Hellhole report. The judge found that the proposal “outlines a plan to tie the defense of this action into a negative public relations campaign that attacked the Madison County judicial system as a “‘judicial hellhole’ friendly to frivolous lawsuits” and a “source of ‘jackpot justice’” (St. Louis Post-Dispatch, April 21, 2011)
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