Tuesday, December 14, 2010
The American Tort Reform Association each year releases a report on the jurisdictions that it considers the most plaintiff-friendly in the nation. The 2010 honorees are (1) Philadelphia, (2) California, particularly Los Angeles County and Humboldt County, (3) West Virginia, (4) South Florida, (5) Cook County, Illinois, and (6) Clark County, Nevada. The additional "watch list" includes traditional favorites Madison County, Illinois; Atlantic County, New Jersey; St. Landry Parish, Louisiana; and St. Clair County, Illinois; as well as the District of Columbia, New York City and Albany, New York.
Is it just me, or does the "hellhole" label feel outdated? Of course some jurisdictions tend to be more favorable for either plaintiffs or defendants, given that there are meaningful variations in laws, jury demographics, and judicial selection processes. That's why forum-shopping won't disappear anytime soon as a favorite activity of litigation strategists. But the heyday of the "magnet courts" in Madison County, the Gulf Coast, and the Rio Grande Valley seems like a long time ago. Not only has the tort reform movement been successful at achieving changes in Madison County and other jurisdictions, but CAFA has made it easy to remove large-scale class actions to federal court and thus has reduced concerns about certification of nationwide class actions in state courts.
ATRA's 2010 list is weighted toward some of the biggest legal markets in the U.S.: Philadelphia, Los Angeles, Miami, Chicago, New York and Washington. This gives the report a different flavor. Rather than primarily calling attention to relatively small counties with truly renegade judges and juries, the 2010 report seems heavily focused on cases in which judges conducted consolidated trials, denied motions to dismiss, or otherwise took actions that were not in defendants' favor.
To those who follow mass tort litigation, it is interesting to see which jurisdictions are perceived by defendants and the insurance industry as the most threatening. For this, the ATRA report is worth reading, even if it is anecdotal rather than data-driven. But the hyperbole of the "hellhole" label gets in the way of taking the report as seriously as its proponents would like.