WSJ Touts Discredited “Judicial Hellholes” Tort Reform Report
A Wall Street Journal editorial promoted the American Tort Reform Association's release of its 2012/2013 “Judicial Hellholes” report to attack state court systems, specifically California, for so-called “frivolous” lawsuits while failing to note the report's lack of credibility. The report, which annually lists states that have court systems ATRA considers to be the most “unfair and unbalanced” to defendants in the civil justice system, has been previously discredited for having no valid methodology and relying on unverified anecdotes drawn from press accounts.
The Center for Justice & Democracy at New York Law School describes the ATRA's members as being “largely Fortune 500 companies with a direct financial stake in restricting lawsuits.” It is unsurprising, therefore, that the “Hellholes” reports regularly feature jurisdictions that corporate defendants feel are not favorable to their interests. In fact, the report describes its methodology as largely based on vaguely described “feedback” from ATRA members. The report uses these member complaints to rank states according to “places where judges in civil cases systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants.” This unscientific method is not, as the WSJ claimed, an explanation of the “costs” of any type of lawsuit, let alone “frivolous” ones.
Rather, the ATRA seems to have compiled its 2012/2013 report by the same method it used to compile its 2007 report, a method it admitted is subjective, and not based on data. As The New York Times reported:
[J]ust because the business lobby has a stake in the civil justice system does not disqualify it from speaking about it. The question is whether the report's arguments make sense, are supported by evidence and are applied evenhandedly. Here the report often falls short.
It is, for starters, a collection of anecdotes based largely on newspaper accounts. It has no apparent methodology.
“We have never claimed to be an empirical study,” said Darren McKinney, a spokesman for the association. “It's not a batting average or a slugging percentage. It's no more or less subjective than what appears in The New York Times.”
The “Hellholes” report's lack of empiricism and use of distorted statistics, and the WSJ's uncritical recycling of its attacks, is especially obvious with respect to California, which the report lists as this year's top offender. The WSJ cites the report to claim “If Oscars were given for abusive class actions, California would take the prize.” The report, in an attempt to give a veneer of statistical validity to its claims of corporations victimized by injured consumers and their lawyers, states that “more than million [sic] lawsuits” will be filed in California this year.
This “million lawsuits” in California claim is based on a gross distortion of the facts. Statistics from the nonpartisan Court Statistics Project show that only 57,833 “tort” suits were filed in California courts in 2010, the most recent year for which data are available. This type of suit, in which victims of wrongdoing seek compensation for their injuries, are the relevant measure for the sort of activity the “Hellholes” report claims to examine. The much larger number of over a million suits appears, based on the Courts Statistics Project's data, to refer to the total number of filings in California courts, including family law (divorces and adoptions), probate (wills), and juvenile cases. It is highly deceptive for the “Hellholes” report to cite this much larger number, mostly consisting of routine cases having nothing to do with “tort reform.”
Perhaps the report engages in this deception because the actual data flatly contradict its narrative of an “unfair and unbalanced” California court system. According to the Courts Statistics Project's data, tort filings in California have actually dropped sharply over the past decade, from 75,243 in 2001 to fewer than 58,000 in 2010. This 30 percent decrease in the number of suits the WSJ and the “Hellholes” report claim to be so concerned about came during a period when California's population increased by approximately 10 percent.
Such distortion is reason to wonder whether the “Hellholes” report is any sort of valid examination of state court systems at all, or whether it is best understood as propaganda for a corporate power agenda.