Schapiro: Nothing like an old-fashioned fight with trial lawyers
By Jeff E. Schapiro, Richmond Times-Dispatch – 1/6/2013
Like Moses in the desert, the business lobby has wandered around this issue for 40 years.
In 1973, Ted Morrison hit on a solution for sloppy lawyering in injury cases that, he said, could cost either side their day in court: slap restrictions on what a judge can consider in deciding a case before it goes to trial.
“It always bothered me that people were losing a good degree of justice because of less-than-adequate representation by their lawyer,” said Morrison, a veteran trial lawyer who was an influential delegate and even more influential corporate regulator. “I thought that was pretty unfair.”
His worry, having represented plaintiffs and defendants: that a judge could be swayed by biased or incomplete case-killing information contained in a deposition, including a tidbit that might depict a plaintiff at fault for an accident or injury, because a less-than-diligent lawyer allowed it to seep into the court record.
With the help of John Dalton, a Republican state senator who would become governor in 1977, Morrison won only-in-Virginia legislation that sharply limits details a judge can peruse, including potentially damaging pretrial remarks by a litigant, before possibly throwing out a lawsuit on what’s called summary judgment.
Business didn’t like the law then. It doesn’t like it now. It has attempted, off and on since the 1980s, to have it rolled back. It’s trying again this year, a gubernatorial and House election year — not a great time for deciding the great issues. But we’re in for great theater, something not seen in the General Assembly in a while: an expensive, high-profile rumble between corporate big shots and trial bar hot shots.
The latest fight has been unfolding for more than a year, and a longtime observer of Virginia’s courts and court-related politics is betting it will continue. That would represent a win for trial lawyers, for whom the four-decade-old rule is an important weapon for keeping alive lawsuits they often finance with their own money in anticipation of a rich payday at trial.
“It’s never found traction before, and unless there’s something I don’t know about this upcoming session, I don’t expect it to pass this time, either,” said Steve Emmert, an appellate lawyer in Virginia Beach who blogs on state judicial issues.
The reason — slick lobbying by trial lawyers, notwithstanding — is rooted in Section 11 of the George Mason-authored Virginia Bill of Rights, the foundation of the state’s constitution. It reads, “That in controversies respecting property and in suits between man and man, trial by jury is preferable to any other, and ought to be held sacred.”
Emmet said, “The (Virginia) Supreme Court has always respected that principle, and summary judgment is, accordingly, a disfavored remedy in Virginia courts.”
That’s not stopping corporate Virginia from giving it another go.
An uber-coalition of deep-pocketed, jury-jittery businesses, trade groups and industry executives, each with their own passel of lobbyists, has organized as the Virginia Alliance for Tort Reform. It’s pressing for changes — some subtle, all significant — in the rules of engagement on civil litigation. Their impact could be greatest on lawsuits that business loves to hate: injury claims by employees and customers.
Heywood Fralin is one of the group’s frontmen. A nursing home operator from Roanoke, Fralin is a familiar sight around the state Capitol — and not because he’s 6-foot-6. Since 1993, he has donated nearly $400,000 to candidates and causes, most of them Republican. That includes about $65,000 to his son, William, a former member of the House of Delegates who quit the legislature to work in the family business.
As a member of the University of Virginia board of visitors during June’s failed presidential coup, Heywood Fralin often wore a troubled expression. Talking about tort reform — a topic for cocktails and canapés it’s not — his mood brightens somewhat. However, Fralin is serious in his view that it’s time the General Assembly recalibrate the scales of justice.
To Fralin, while Virginia is anything but a hotbed of business-hostile litigation, lawsuits — actual and looming — are an impediment, particularly for smaller, service-focused companies. They’re stretching budgets to pay for expansion, employee health care and, perhaps, a defense lawyer.
Fralin was reluctant to discuss his own experience but said his company has had bigger problems in Virginia than the other state in which it operates, North Carolina. At a legislative hearing this past summer, business laid out examples of nightmare litigation. Talk about throwing yourself on the mercy of the court.
To the Virginia Trial Lawyers Association, which has dispensed $2.5 million to Democrats and Republicans since 1993, tinkering with summary judgment is much ado about nothing, particularly in a state with a long history of deference to business in politics and policy.
Witness: contributory negligence, a concept embraced by Virginia and about five other states. It holds that if a plaintiff is, in any way, to blame for an injury, claims for damages — read: money — can be fully dismissed. Contributory negligence is a big reason the Virginia courts aren’t swamped. Indeed, according to VTLA, only about 600 civil cases a year are decided by Virginia juries, with most settled ahead of trial.
Geoff McDonald, a personal-injury lawyer in Richmond, said he takes only 14 percent of prospective cases. That’s not just because the strapping former U.Va. football player does so on contingency — that he bankrolls cases expecting to recover his expenses and then some — but because the fear of contributory negligence means he better have a rock-solid claim.
Perhaps the dispute holds promise for the plaintiff and defense bars.
Should Virginia follow the lead of 49 other states and the federal courts by allowing depositions in summary-judgment motions, it might give lawyers for both sides an opportunity to try a case — and charge for it — at least twice: at summary judgment, and if that’s unsuccessful, at trial.
But there’s the in-between: challenging a decision on summary judgment, which raises knotty, mind-numbing procedural questions.
“Now,” Steve Emmert said, “you see why summary judgment hasn’t gained legislative traction before?”