On “Closing the Courthouse Doors”

Against the Current, No. 58, September/October 1995

Barbara Zeluck

MICHAEL STEVEN SMITH’s “Closing the Courthouse Doors” (ATC 57) identifies the assault on the U.S. civil justice system’s provision for compensation of personal injuries with the Contract on America. True, the Gingrichians are aiming a broadside with the aim of protecting not just large corporations and their insurance companies, but petty swindlers and drunk drivers as well. But they aren’t the first. To those who looking to personal injury (tort) lawsuits as one means of raising workplace safety standardsas an auxiliary to the class struggleit’s been evident that this attack has been building for some time.

Without the “contingency fee” system, working people are denied their day in court  unless, as occasionally happens in England, the union pays the lawyer.  Naturally the corporations being sued”and their courts and their newspaper mouthpiecesdo not like this system. They yell and scream about the astronomical amounts going to victims’ lawyers, with never a word about the even more astronomical amounts paid to lawyers for the “defense”.

How has the attack on the right to a jury trial in the civil justice system been building?

(1) Legislative threats to abolish the contingency fee system have been frequent in Congress and state legislatures. One that was narrowly defeated in Congress in 1992 also provided that a plaintiff who lost the case in court would have to pay the company lawyer fees  a real forerunner of the 1995 bills.

Repeated attempts have been made to ban personal injury lawsuits outright and substitute a national Workers Compensation insurance system whose costs companies can calculate into their product prices. (This is what happened to Black Lung victims, with dire results.)

State Workers Comp systems are already instituting cutbacks; abolishing the right to sue would further undermine worker protection.

(2) A second way has been Court agreement to provide “Chapter 11” bankruptcy protection to profitable corporations like Johns Manville (as well as most of the sixteen other asbestos companies who followed suit), corporations seeking a way to escape financial liability for their “negligent failure to warn” their employees of the lifethreatening nature of asbestos. Thus the courts allow them and their insurance companies to protect the greater part of their assets from “health claimants”to whom, they end up paying a tiny fraction of the amounts juries award. (It’s worth noting that the law firms representing asbestos victims have refused to fight any part of this set up.)

(3) Blaming the victims for “clogging the courts,” in 1991 Supreme Court Chief Justice Rehnquist in cooperation with other judges “stayed” all existing and future cases filed in federal courts. This stay stopped most federal trials (and thus any pressure for outofcourt settlements)providing a perfect example of “justice delayed is justice denied” (many health claimants died) and forcing asbestos victims to settle for dramatically less than they had been winning in jury trials.

(4) In 1993 two prominent law firms representing asbestos victims agreed to make a deal with the Center for Claims Resolution (CCR) which is composed of twenty financially solvent (not claiming bankruptcy), even very prosperous firms. They agreed to a deal which BINDS ALL potential FUTURE  VICTIMS (whether or not they’re sick or even know they’ve been exposed, whether or not they’ve even been born).

(a) to FOREGO JURY TRIALS, to allow the companies to act as both judge and jury in determining the validity of claims;

(b) to limit the number of victims and the amount the twenty companies will pay over a period of ten years (obviously they can’t limit the number of workers who will develop asbestoscauses diseases), at rates lower than awards then being paid by the bankrupt companies. (Even after the dramatic decline in awards following the 1991 stay of all federal cases, CCR had been paying an average higher than the range agreed in this deal.)

(c) Medical and exposure criteria required to qualify for any award are so strict that they would eliminate 40% of victims whom a court trial would compensate.

(d) No cash compensation to victims suffering no acute disease, but for whom CCR  like most jurieshas historically settled for substantial monetary payments.

(e) No “joint and several liability.”

(f) No punitive damages.

Conclusion: Militant demonstrations against the perpetrators of the Contract on America are in order. But more than that. Now is the time for all good men and women to organize ourselves for class struggle.

ATC 58, September-October 1995