On Thursday, U.S. Senate gave Pres. Bush his first major legislative victory of his new term by passing a bill on reform of class action lawsuits. Unfortunately, as with most legislation sponsored and loudly advocated by Bush, this one is wildly off the mark. It seems to have huge constitutional / federalism issues on its face.It ignores the laws already on the books for dealing with bad lawsuits and it creates more headaches for federal courts.
Perhaps someone more experienced in federalism could tell me on what basis could a Congress tell the states how to interpret the law or otherwise monkey around with state court jurisdiction?
Aside from constitutional isssues, here is what this bill does. For starters, federal judges do not like to handle cases, in which they have to interpret state law. Often times, state courts have not ruled on a particular issue, so federal courts either have to guess how a state would interpret its law or certify questions for interpretation by the state's highest court. Based on my experience in California, it takes the Supreme Court quite some time to respond to these certified questions from federal court. As result, class action lawsuits would languish on the docket for years (criminal and certain other cases, I believe, have priority) - I can attest, from personal experience, that even now, it took us almost four years to get to a civil trial in federal court in Fresno (not the busiest venue in the nation). One can only imagine the additional defense attorneys fees these delays would create. So much for combating escalating costs of defense...
State courts are also not winners in this bill. For example, it prohibits state courts from hearing class action lawsuits with more than $5,000,000 in controversy. But at least in California, this limitation is easy to get around because the plaintiff does not have to allege a precise amount in controversy, so long the damages are allegedly within the jurisdictional limits of this court. Furthermore, this limitation would likely lead plaintiff's counsel to file separate smaller lawsuits in different counties, so there are likely going to be inconsistent adjudications of the same issues by different state court. Also, handling multiple lawsuits in different counties would, you guessed it, INCREASE defense attorneys' fees.
The amazing things about these poor attempts at tort reform is that we already have laws on the books to deal with bad lawsuits. Based on my experience, the bigger problems with bad filings is that state court judges are just unwilling to pull the trigger on a dispositive motion on most bad cases. The few times I was able to get defense summary judgment in a personal injury case, it was like pulling teeth. And if you are trying to get rid of a bad filing at the pleading stage, the odds are heavily against you even if there is a case on point in your favor. Emergency appeals of those rulings are almost invariably denied - I would guess only somewhere 1-3 % of the emergency appeals get granted.
The truth is also that in California, our state court judges are often overworked and are not always qualified. While I happen to appear before some great state court judges in the Bay Area, I've also had my share of running into blind incompetence. So, the solution may be to get more quality people on the bench (less prosecutors, more civil attorneys and yes, even some criminal defense attorneys, who usually are well versed in difficult areas of the law) and to get these people better help in dealing with law & motion issues. The solution may also lie in requiring judges to issue written rulings on each dispositive motion and those rulings need to be more than 1-2 lines. And the appellate courts should be less timid in stepping in at the emergency appeal / writ stage to correct legal errors and not write them off as having an adequate legal remedy of appeal. As someone handling appeals, I can tell you that appeals after a jury trial (following by post-trial motions) are long and expensive.
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