Are Judicial Hellholes a Myth?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: May 23, 2018

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Scales of JusticeThe phrase “judicial hellhole” is used to describe states, counties, or cities that the advocacy groups perceive as unfair to businesses in litigation. States or counties that are unfair to consumers or accident victims in litigation might just as sensibly be called judicial hellholes, but the phrase has been used exclusively to identify places where businesses and insurance companies are seen as having an above-average risk of losing lawsuits or of paying large verdicts.

When a particular jurisdiction is designated as a “judicial hellhole,” local media dutifully report the designation, often without investigating the bias that underlies the designation. Politicians then seize on the “judicial hellhole” designation, promising “reform” that purports to benefit people who use the courts. In Missouri, for example, Gov. Eric Greitens campaigned on a platform of tort reform and, before he was indicted (twice), invoked the “judicial hellhole” slogan when he signed legislation that curtails the ability of ordinary people to obtain justice by suing businesses for wrongdoing.

Consumers of the judicial system should understand why certain places are labelled “judicial hellholes” before deciding whether the disparaging term should affect their perception of the civil justice system. When they know all the facts, ordinary people are likely to dismiss “judicial hellholes” as a myth.

What Is a Judicial Hellhole?

“Judicial hellholes” are regularly identified and ranked by the American Tort Reform Foundation (ATRA). The ATRA defines “judicial hellholes” as “places where judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits.”

That definition seems to identify the problem as one of biased judges. In fact, the ATRA’s website claims that “it is usually only specific counties or courts in a given state that warrant this [judicial hellhole] citation.” That claim is difficult to reconcile with the fact that four of the top eight “judicial hellholes” currently listed on ATRA’s website are states: Florida, California, New Jersey, and Louisiana.

Are Judges the Problem?

If judges are the problem, why are four entire states regarded as judicial hellholes? It cannot be the case that judges statewide have banded together to be unfair to defendants in civil lawsuits. Nor is it sensible to believe that judges have any reason to apply “laws and court procedures” in ways that are “systematically” unfair to businesses. What’s in it for the judge?

Trial judges have only modest discretion when they apply “laws and court procedures.” Laws are enacted by legislatures and interpreted by appellate courts. In most cases, trial judges simply follow that language of a statute or the explanation of that statute given by an appellate court. Court procedures are generally straightforward and are written in ways that do not favor either side in litigation.

When judges are unfair to either side in litigation, the errors can be corrected by appellate courts, but appellate courts rarely have cause to reverse a judgment because the judge applied “laws or court procedures” in a biased manner. All judges make mistakes, some favoring plaintiffs and others favoring defendants, but evidence of systematic judicial bias against defendants who are sued by consumers and injury victims is anecdotal at best.

On the other hand, history supplies ample evidence that defendants are sued by consumers and injury victims for good reason. When negligent drivers cause collisions that kill or maim accident victims, insurance companies should expect to pay large judgments on behalf of injury victims. When banks steal a few dollars from each of their customers every month, bank customers should be allowed to bring their claims as class actions so that they can efficiently and economically pursue a remedy against unlawful behavior. When doctors commit malpractice, injured patients should not be subjected to burdensome procedural rules and caps on damages that do not apply other kinds of litigation.

In the end, business defendants are more concerned about juries than judges. That’s why the legislation that ATRA champions so often takes power away from juries and empowers judges to “protect” business defendants from the consequences of their wrongdoing.

What “Reforms” Does the ATRA Want?

While the organization purports to favor legislation that would make the judicial system “fair for everyone,” the legislation championed by ATRA is designed exclusively to benefit business and insurance interests, not consumers and injury victims. Causes championed by ATRA include:

  • Limiting the availability of punitive damages, even when juries find that a defendant has behaved outrageously and that punishing the defendant will deter similar businesses from engaging in similar conduct
  • Limiting compensation for pain, suffering, and emotional distress
  • Limiting damages that can awarded in medical malpractice lawsuits
  • Apportioning fault in ways that make it more difficult for injury victims to recover full compensation for their injuries
  • Making it more difficult for plaintiffs to use qualified expert witnesses in litigation
  • Restricting the availability of class action lawsuits, which allow consumers to band together in making similar claims against the same defendant, reducing the cost of litigation for individual consumers and enabling them to pursue a remedy that would otherwise be too costly to obtain

Another advocacy organization, the Center for Justice & Democracy at New York Law School, points out that ATRA positions itself as helping “average people” who are treated unfairly by the civil justice system while working to benefit “Fortune 500 companies with a direct financial stake in restricting lawsuits.”

Who Funds the Campaign Against Judicial Hellholes?

The campaign that the ATRA wages against judicial hellholes is funded by the chemical, tobacco, drug, automotive, and insurance industries, as well as medical professional associations and other business interests. Given its membership, it isn’t surprising that the ATRA lobbies legislatures and uses public relations campaigns to support “reforms” that make it more difficult for consumers and injury victims to recover compensation when corporations engage in negligent or unlawful behavior.

When consumers of legal service hear phrases like “judicial hellhole,” they tend to lose confidence in the legal system. Doctors, banks, drug manufacturers, insurance companies, and all other businesses have a right to be treated fairly, but so do people who are harmed by medical malpractice, injured by dangerous drugs, charged excessive or unnecessary fees by banks, or damaged in other ways that entitle them to a legal remedy. The fact that business defendants sometimes lose costly lawsuits is usually a reflection of their egregious behavior. The best protection that businesses have against costly lawsuits is to behave responsibly, not to condemn courts as judicial hellholes.

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