Kia Franklin

Memo to the Netroots on Civil Justice

TO: The Netroots
FROM: Kia Franklin, Civil Justice Fellow and Managing Editor of TortDeform.Com
The Drum Major Institute for Public Policy

If I were to say that our legal rights are under stealth attack by sophisticated corporate lobbying interests and their allies in all three branches of the government, would I sound like a paranoid conspiracy theorist? If you answered “yes,” just remember: you’re not paranoid if they’re really out to get you. Under-regulated industries, their friends in their corresponding federal agencies, and corporation-friendly legislation have put the American public’s safety, privacy, health, and economic security at risk. Big business industries and their lobbyists are quietly working to make it even more difficult for us to hold corporations and the government accountable through the court system. The Netroots must mobilize right now around protecting our legal rights and preserving our ability to enforce them through the civil courts. Consider this our call to arms.

The progressive Netroots continue to demonstrate our force by mobilizing on a variety of important issues and attracting increasing attention from our political leaders and the mainstream media. The most recent example has been online organizing against the FISA law to grant immunity to corporations that may have illegally spied on innocent citizens. Although this dangerous FISA bill ultimately passed, our experience coming together around FISA should serve as a blueprint for future action around civil justice issues. Our legal rights, privileges, and protections as citizens under the U.S. Constitution deserve more attention. This memo presents some ideas for how progressive bloggers can help.

The problem:
In the marketplace, complicit government agencies and their accompanying under-regulated industries allow dangerous drugs, toys, food , and all manner of deceptive and unconscionable financial service products to endanger our physical and economic health because it saves them money. But the victims of such abuses have little legal recourse thanks to the success of the corporate lobby’s campaign against our civil justice system. On the hill, lobbyists successfully protect big industries from lawsuits by weakening people’s ability to file lawsuits and obtain adequate compensation for abusive corporate practices. This benefits groups like: telecommunications companies that violated Americans’ privacy through the Bush Administration’s illegal wiretapping, the mortgage industry that gave homeowners predatory loans, and employers that engage in pay discrimination.

As deplorable as this is, the current public conversation about our legal system is dominated by sensationalized depictions of trial lawyers and loony lawsuits over spilled coffee, rather than attention to how we can use the legal system to curb harmful business practices. Despite the fact that this lore is riddled with misinformation (turns out Grandma Liebeck wasn’t so frivolous, after all) and deception, it has successfully shaped public opinion through clever packaging and dissemination via the mainstream media. Politicians on the right have used this tort “reform” lore to get elected or attack an opponent. And the progressive and centrist politicians that have not bought into this mythology have nonetheless largely remained silent about how access to the courts helps Americans fight for safer products, safer medical treatment, fair employment, and fair dealing with corporations.

What a progressive movement for civil justice looks like:
Everyone benefits from a robust and effective civil justice system. As the arm of America’s legal system that gives victims of harmful conduct their day in civil court, the civil justice system gives individuals a chance to obtain fair compensation for their injuries. And because it deters and punishes bad practices that harm people and communities, the civil justice system also produces great societal benefits. It ensures that powerful entities abide by the laws that protect people against fraud, discrimination, injury from dangerous products, environmental abuse, and other violations of our right to safety and security.

With the proper tools and energy, the engaged, informed, and opinionated Netroots can challenge the tort “reform” agenda to weaken the civil justice system. Together we can build a productive conversation about what Americans deserve from our legal system, and how we can mobilize to get it.

A progressive movement for civil justice is one that supports policies that preserve the function of the civil justice system while addressing inequities that make it difficult for some people to access the courts. A progressive movement also opposes policies that obstruct access to the courts, like laws that remove a person’s right to sue or arbitrarily restrict compensation to the injured.

There are several serious challenges to ensuring that our civil legal system works more effectively for regular Americans and not just big corporations and the government. In our report, Election ’08: A Pro Civil Justice Presidential Platform, DMI outlines common sense solutions to six pressing challenges in the civil justice system:

1. Americans entwined in critical legal claims must have access to a lawyer even if they cannot afford one. This guarantee exists in criminal cases but not in civil cases, creating unfair odds for people like low income seniors facing wrongful eviction, parents facing loss of custody of their children, and children facing the foster care system.

2. Corporations must be stopped from requiring Americans to give up their right to access the courts in take-it-or-leave-it style contracts. . These contract clauses produce a variety of unfair outcomes for injured people, like families of nursing home patients who die of abuse/neglect and can't sue the facility; employees who were discriminated against and can't sue their employer; and consumers who were defrauded and can't sue the corporation with which they did business. Perhaps the most horrific example was Jamie Leigh Jones' fight to take her former employer, KBR, to court rather than arbitration for claims of false imprisonment and sexual abuse by coworkers. This battle, fortunately, was ultimately successful.

3. States must be able to pass laws that protect consumers against corporate abuse, without federal agencies voiding these laws. Want another Vioxx? Of course we don't. But Bush Administration agencies like the FDA are laying forth the path for these disasters to keep happening--they have written dozens of rules into federal regulations that obliterate the effect of state laws that would allow consumers to sue corporatinos when they harm the public. This improper use of federal regulatory argency preemption clears the way for corporations to pursue profits without thinking about our safety.

4. Corporations must be stopped from requiring plaintiffs to keep quiet about dangerous and defective products as a condition for settling legal claims. Beacuse of these secret settlements, people have develoepd diabetes from taking Zyprexa; passengers and drivers have been killed riding on defective Ford Firestone tires; and millions of individuals have died of asbestos exposure. We've got to mobilize the public around this patently unjust loophole that allows corporations to profit off of dangerous products.

5. The debate about health care and lawsuits needs an information overhaul. We need to prioritize increasing patient safety and debunk the myths and deception about lawsuits that distract this debate and only serve to enrich insurance companies. Corporate special interests want to limit the compensation that deserving victims of malpractice can receive for their injuries, even though medical malpractice insurance rates do not go down when states reduce malpractice compensation. Investment patterns in the insurance industry cause the fluctuating rising rates, so targeting malpractice lawsuits only protects the profits of insurance companies (they currently pocket 50 cents to the dollar) and further victimizes injured patients.

6. Consumers deserve a way to hold insurance companies to their end of the bargain--through the courts and through better regulation. We must shine more light on the insurance industry and implement policies to penalize insurance companies that systematically deny valid insurance claims. Many consumers will pay out of pocket rather than fight back, because they know the deck is stacked against them. Federal regulation would allow for closer oversight of this consumer abuse.

(For more information on these six challenges, read DMI's Full Report here or read its Guiding Principles, which provide simple, clear assertions that can be used in future conversations about the civil justice system.)

Why this issue, why now?
Given the state of our economy and the fact that we are in a critical election cycle, there could not be a more appropriate time to get progressive bloggers mobilized around civil justice issues. But this is not just an opportune moment, it is also a moment of urgency. Hardworking Americans grapple with higher costs of living and tighter budgets, while corporations enjoy higher profits and looser regulation. All of this adds up to higher stakes in the struggle to advocate for our legal rights. Therefore, we must intelligently and strategically seize upon the opportunity to affect dialogue around our civil justice system.

Our uncertain economy creates newfound urgency around preserving Americans’ access to the courts. Americans are losing faith in the government’s ability to protect people through effective regulation. They are also growing increasingly wary of corporate special interest groups’ influence on the government. (In this poll by Democracy Corps, 63 percent of participants believed that “the bigger problem is that government favors big business and special interests.”) When corporations aren’t properly regulated, tort “reforms” that prevent consumers from fighting corporate abuse in the courts only exacerbate economic injustice. The sub-prime mortgage crisis is perhaps the most glaring example--many of the hardworking Americans who lost their homes never had access to a lawyer or to legal recourse against predatory lenders.

During this critical election year, the voting public must ask political leaders how they’ll help Americans fight corporate abuse and economic injustice. Americans want a “government that listens to people, not special interests,” according to Democracy Corps. So the candidates must address the corporate lobby’s influence on access to the courts—a glaring example of special interests interfering with cherished legal rights. This requires more than an economic stimulus plan--- it requires taking hard positions on important issues. Will the candidates support the people who try to enforce their rights in the courts only to find that a corporation has taken this option away? Demanding answers will bring about more substantive dialogue about the candidates’ political philosophies and help add integrity to the political process. It will also help the public shape a progressive agenda for civil justice.

While the Netroots are mobilizing around these issues as they arise individually, perhaps the largest recent example being the organizing around FISA, we need a coordinated effort that shows how they are all linked together as related elements of a systematic attack on ordinary American’s legal rights and access to the court system. Special interest groups—the corporate lobby, their well-funded think tanks, their friends on the hill—want to maximize profits by operating above the law. What’s really at stake are human lives and livelihoods. After all, if we can’t hold negligent or predatory companies accountable in a court of law, we can’t hold them accountable at all.

The American public needs a critical mass of messengers who are ready to take on the empty rhetoric and unfettered influence of corporate power, and fight for our right to a fair and open court system. We need independent, thoughtful, and progressive bloggers to infuse the dialoge with their perpective, if for no other reason that that the discussion should not be exclusive to lawyers and policy wonks. This is an issue that affects anyone who ever will transact with corporate America, whether by using a credit card, ingesting prescription drugs, or simply showing up to work every day. Below are some ideas on getting to work on this critically important task, and hopefully these thoughts will grow into a larger discussion across the blogosphere.

Civil Justice Work in the Netroots:
There are several blogs that are already working on access to justice issues. The first thing progressive bloggers should do is visit these sites, comment on them, and add them to your blogroll. This is not a comprehensive list—it’s just a start:

The American Constitution Society
The Brennan Center for Justice
Consumer Law and Policy Blog (Public Citizen)
On DailyKos, the posts of diarists like Bouldergeist, nyceve, Jeff Feldman, mcjoan, and wmtrial lawyer
Mother Jones and MoJo Blog (Specifically the work of Stephanie Mencimer)
The National Campaign to Restore Civil Rights
The PopTort
And of course, TortDeform and DMI Blog

The Netroots' role
Right now we need an independent voice that understands the importance of this issue and is mobilized to forge an effective response to groups working to undermine the civil justice system. As Elana Levin of Unite Here, and formerly of the Drum Major Institute, wrote in her Memo to the Netroots on Immigration:

“The netroots’ political independence, understanding of the importance of framing and ability to act as a megaphone to the voices and concerns of people outside the beltway could be a godsend... The netroots has already proven its ability to change the conventional wisdom about politics and create new media narratives.”

Because our right to fight for economic security, health, and safety are at stake, this should be a top priority for the progressive blogosphere. The netroots can use these valuable skills and assets to build a national conversation about the importance of the civil justice system. They can do this by informing, correcting, and mobilizing around civil justice issues.

1. Inform: Inform readers about the civil justice system, what tort “reform” is, and how if affects real people.

Currently, the blogosphere is facing a civil justice information gap—most blog readers don’t have access to the excellent policy reports and studies that shed light on the importance of our civil justice system and put tort “reform” myths to the test. To fill this gap, bloggers can educate their readers and reshape conventional wisdom about the nature of our legal system by sharing reports such as Public Citizen’s study on the dangers of binding mandatory arbitration, CJ&D’s reports on medical malpractice lawsuits and the costs of the tort system, The Brennan Center’s work on access to legal representation, or Commonweal’s work such as their report on the funding of right wing organizations that favor tort “reform”.

Progressive blogs should also consider inviting lawyers, legal scholars, activists, and individuals who’ve navigated the legal system or been denied access to it, to guest blog. These perspectives greatly enrich the dialogue and show the public that these issues are not merely theoretical, but affect real people and real lives.

Bloggers also must keep an eye on politicians and legislation that affects our legal rights, watching what their local, state, and national representatives say and how they vote on issues that affect our ability to seek redress through the courts. For example, several pieces of legislation have been proposed that could affect corporations’ ability to force people to waive their constitutional right to a jury trial. (Go here, here and here for details) We should keep careful watch on how our representatives vote on these bills, and be ready to mobilize around this as we organized around opposing the FISA compromise.

Bloggers can also go to the following resources for information to share and inform their blogging (again, this is not a comprehensive list—just a start):

DMI’s, where you can download a widget that will help you stay updated on civil justice-related legislation and how it impacts the current and aspiring middle class.
DMI's report, Election ’08: A Pro Civil Justice Presidential Platform
Public Citizen's Congress Watch section
The Committee for Justice for All website
The Center for Justice and Democracy website
The Commonweal Institute website
The National Association of Consumer Advocates website
Alliance for Justice website
Justice at Stake Campaign website
Progressive States website
Save Our Courts website

2. Correct: Identify, discuss, and correct tort “reform” lies or misinformation that are told by politicians and the media.

Bloggers can engage media watchdog groups like Media Matters for America when the mainstream media misstates information about our legal system, or monitor local and national media themselves. It is taken for granted that Americans will agree that too many frivolous lawsuits are filed. Where does this idea come from and why does it dominate dialogue about our justice system? Much of the misinformation about the legal system is disseminated by the press—and not just news sources with a corporation friendly bias, but also press outlets that are generally regarded as “neutral.” The framing and default language politicians and the media use to discuss our legal system are often very misleading and sometimes patently inaccurate, and need correction by watchful bloggers.

3. Mobilize: Engage readers about opportunities to influence policy through activism and outreach to their representatives.

Real change for improving our civil justice system can happen both on and offline. Bloggers should inform readers of efforts to mobilize around issues involving access to the courts, and encourage readers to get involved in these efforts. For example, urge readers to call their representatives about relevant legislation, participate in local activism, blog about it, or videotape relevant protests, speeches, or events and share it online.

This was witnessed on a national scale with organizing around the FISA leglislation. Bloggers across the country organized, created helpful tools to educate their audience about what was at stake, created tools to pressure representatives to vote in favor of our constitutional rights, and as a result generated attention from mainstream media and even the presidential candidates.

But this organizing can also happen on a local level. In New York City a coalition of lawyers, activists, and advocates for the elderly and the homeless have come together to work towards establishing a right to counsel for low income seniors in housing court. Part of this organizing has involved protests, gathering the support of community organizations, speaking with city council representatives, and drafting legislation. Bloggers can help initiate offline activism by spreading the word and encouraging interested individuals to get involved in the coalition. They can do online activism by getting readers to send emails to their representatives, sharing updates, and blogging about why this movement is important.

Bloggers can also organize public education sessions such as screenings of relevant films that educate about pressing civil justice issues, and encourage readers to do the same.

The netroots have an invaluable role in the movement for civil justice. It is our hope that this memo sparks a larger discussion about how the blogosphere can become more invested in talking about our legal system and making the connection between our legal rights and our ability to fight for economic security, health, safety, and freedom from corporate abuse. It is also our hope that the netroots will develop a framework for identifying and correcting empty tort “reform” rhetoric that attempts to divert this important discussion.

The Drum Major Institute regards itself as a netroots think tank. We have a Netroots Advisory Council that advises DMI in making sure our materials are useful to bloggers and we continue to offer ourselves as a resource to you and your work on this important issue. Please feel free to contact us at kfranklin… if there is more we can do to facilitate your engagement on civil justice work. Thank you.

Kia Franklin: Author Bio | Other Posts
Posted at 11:47 AM, Jul 21, 2008 in Civil Justice | Debunking Tort "Reform" | Decision 2008 | General Debunking Resources
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Awesome memo, Kia!

The Netroots need to understand that we get rights in the legislature, but we enforce them in the courts. Without a robust court system, democracy fails.

Posted by: Justinian Lane | July 21, 2008 1:12 PM

Ridiculous post - access to the courts is virtually unlimited, without regard to how reasonable or legitimate is the alleged grievance. There is one organization truly dedicated to access to the courts - access without the need to hire an attorney, and which seeks transparency in discipline of legal for wrongdoers.

That organization, which is not at all interested in tort reform is H.A.L.T. (Help Abolish Legal Tyranny).

H.A.L.T. is the only organization really concerned about access to the courts. The rest, including this site, are merely trial lawyer fronts

Posted by: Avenger | July 21, 2008 5:21 PM

Virtually unlimited? Tell that to the thousands of victims of defective prescription drugs in Michigan - they can't sue. Or to me: Due to a mandatory arbitration clause I can't sue Spring for illegally charging me taxes I don't owe.

Posted by: Justinian Lane | July 21, 2008 5:33 PM

I agree with this sentiment:

"But in order to lay the groundwork effectively, progressives have to work together to create a blueprint in which we all believe. So what do we believe in? And are we making these beliefs known?"

I keep asking: Post presidential victory, when liberals are able to make less overt gains on the federal level, without a cohesive blueprint, will they be able to move forward?

Posted by: Alex Steed [of Make Something Happen] | July 21, 2008 11:15 PM

Absolutely--without a clear vision of what it is we want and believe in, it's pretty much impossible to get organized.

Opening up access to the courts is going to be an issue of growing importance if things continue in the current direction, with people losing more and more of their rights and protections to bureaucracy and greed. It is also a tangible objective that people can actually get organized around, so that we don't just have to feel frustrated and helpless but can do something to fight corporate abuse and governmental neglect.

Thanks for the comments.

Posted by: Kia | August 5, 2008 2:54 PM

Please add my blog to your blogroll. I am a lonely lawyer in Aloha, Oregon simply trying to change the world from the ground up. My blog is Thank you. Lauren Paulson 3980 SW 170th Ave. Aloha, Or 97007 971 219 5859

Thank you.

Posted by: Lauren Paulson | December 7, 2008 8:16 PM