Cyrus Dugger

A Response to ‘End Open-Ended Litigation’

One need only probe the comments section of Tort Deform to meet Ted Frank, the Director of the Liability Project at a conservative think tank called the American Enterprise Institute. He has made it his life’s work to advocate against our ability to access the courts and the civil justice system.

Early last month Ted got an op-ed published in the Washington Post titled “End Open-Ended Litigation.” Here’s the introduction and link:

Thursday, September 7, 2006

The Patagonian toothfish sold much better once a marketing association renamed it Chilean sea bass, though most such fish are neither Chilean nor bass. The Association of Trial Lawyers of America, which acquired a bad reputation over the years, is apparently seeking a similar rebirth by renaming itself the American Association for Justice. But a perusal of some recent cases pushed by the plaintiffs’ bar show much more of an interest in benefiting trial lawyers than in fairness or justice. (link)

As stated in the disclaimer at the end of the op-ed:

Ted Frank, a former litigator, is a resident fellow at the American Enterprise Institute for Public Policy Research and director of the AEI Liability Project. The author represented Merck [the drug company which produced the recalled drug Vioxx] in 2005, but does not speak for Merck or its attorneys.

Over the weekend in response to this opinion, Jon Haber, the President of the American Association of Trial Lawyers, published a piece in the same paper titled “A Response to ‘End Open-Ended Litigation.’”

Saturday, October 21, 2006; 12:00 AM It comes as no surprise that Ted Frank (“End Open-Ended Litigation”) would propose destroying the nation’s civil justice system to benefit the insurance industry, drug companies and other corporate powers. He has, after all, represented one of the nation’s largest pharmaceutical manufacturers against consumers injured by one of its products and now works for an outfit, the American Enterprise Institute for Public Policy Research, that expresses little regard for the nation’s courts.

While defending large corporations should be expected, his suggestion that consumers would benefit by limiting their access to the nation’s courts is too preposterous to let go unchallenged.

The claim that the civil justice system is overrun by lawsuits that may transform the nation into a “banana republic,” as Frank implies without irony or facts, is just plain laughable.

For one thing, the Bush administration, no friend to the civil justice system, reports the number of federal tort trials has plummeted almost 80 percent since 1985, while Justice Department statistics indicate the number of tort trials at the state level has decreased as well. So much for clogging the courts.

What’s more, a report by the Federal Judicial Center — the research and education arm of the federal court system — finds that 70 percent of the federal district judges surveyed felt that “groundless litigation” was either a “small problem” or a “very small problem,” while 15 percent said it was no problem at all. (link)

His op-ed concludes:

The purpose of the civil justice system is clear: When corporations and their CEOs act irresponsibly by delaying or refusing to pay fair and just insurance claims, producing unsafe products, polluting the environment or swindling their employees, the last resort for Americans to hold them accountable is in a court of law.
The role of a trial attorney is to make sure any person who is injured by the misconduct and negligence of others can get justice in the courtroom, even when taking on the most powerful interests. The civil justice system provides a level playing field for all, and baseless claims, like the ones Frank make, are nothing more than an attack on the Constitution of the United States.

As stated in the disclaimer at the end of his op-ed:

Jon Haber is CEO of the Association of Trial Lawyers of America (ATLA).

Posted at 9:52 AM, Oct 23, 2006 in Permalink | Comments (4) | TrackBack (0)