Commentary - August 27th, 2014
2:13 pm
Wed August 27, 2014

Justice At Risk

When we think of America's legal system, it seems we most often think of our criminal justice system and the protections it offers to hold criminals accountable while also shielding innocent citizens from governmental abuses. In some ways, the more remarkable part of our legal system may be our civil justice system and the contributions it and our constitutional right to trial by jury have made to consumer health and safety.

The basic premise of our civil justice system is that if you are physically injured, if your property is damaged or if your rights are violated, by the wrong doing or negligence of another, you have the right to seek to have the wrong doer held responsible and accountable in a court of law. The constitutions of the United States and Montana guarantee our rights of access to our courts and to have our cases heard by a jury of our peers. The civil justice system also provides citizen access to the courts to try to prevent harms from occurring in the first place.

For over 200 years, the American justice system has been an important vehicle for positive social change. No matter their wealth or social standing, men and women across this country know that if they or loved ones are injured by another, they can hold the wrongdoer accountable. And, often they play a role in ensuring that no other family suffers the same tragedy, by forcing corporations to take unsafe products off the market.

Our justice system has resulted in improved health and safety for all Americans:

*The anti-miscarriage drug DES, the Dalkon Shield IUD and super-absorbent tampons that cause toxic shock are no longer on the market, ensuring that the health of women will never again be jeopardized by these products.

*Unsafe cribs no longer strangle infants.

*Defective GM ignition switches that caused injuries and deaths are being replaced as I speak.

*Auto fuel systems no longer explode upon impact. Garage doors now have automatic reverse mechanisms, trucks have back- up beepers, farm tractors have roll bars -- the list goes on.

These changes have come about thanks to courageous and determined citizens, and the attorneys who represent them. Together, they have forced the negligent and reckless to account for their acts. Our legal system provides for justice -- through juries composed of ordinary citizens acting as the conscience of the community.

The importance and success of our civil justice system cannot be overlooked, especially now that this very system is under continual assault by corporate America. At a time when Americans increasingly sense an erosion of personal responsibility in society, our civil justice system remains the one institution that holds individuals and corporations and their CEOs responsible for their behavior, and forces them to change their conduct for the better.

Corporate CEOs however, are continually seeking ways to avoid legal accountability. Whether it's through the U.S. Chamber of Commerce or the Koch brothers' Americans for Prosperity, they use code phrases like “tort reform” or “court reform” to lure people into supporting efforts to deny or limit their right to a trial by jury guaranteed by the Seventh Amendment.

Every year the U.S. Chamber of Commerce, on behalf of the CEOs of the large corporations whose interests the Chamber serves, releases a report purportedly ranking the civil justice system’s of all fifty states. How does the Chamber gather the data for this report? Do they study court data or conduct their own research of court statistics? No. Do they interview judges, plaintiffs and defendants, attorneys for plaintiffs and defendants, jurors, politicians, or even members of the public? No. The only thing they do is to poll some 1,500 attorneys who represent corporations. For Montana, there are usually fewer than 10% of the corporate attorneys polled who profess to having any knowledge of our civil justice system.

The Chamber has used the report in advertising in some states and in Washington DC to try to convince the public and lawmakers that corporations need more protections and citizens need fewer rights. Using this report to make public policy makes as much sense as polling 100 prisoners at Deer Lodge and using their views as the sole basis to revamp our criminal justice system – forget the judges, crime victims, prosecutors, or the public, make policy based solely on the opinion of wrongdoers.

But, don’t be surprised if this year’s report becomes a catalyst in Montana’s supreme court elections as justices Rice and Wheat face reelection battles. The minions of the U.S. Chamber have been very active in other states, running particularly nasty independent expenditure campaigns known more for their mudslinging and campaign finance violations than for educating the public.

What corporations want with “court reform” is what they have with the banking system - to socialize the risk and privatize the profits. They want us Montanans to give up our Seventh Amendment rights.

We should be proud of our justice system, and be ever-vigilant that citizens never lose their essential rights – rights that Justice Rice and Justice Wheat have protected while on the Montana Supreme Court. When you see and hear the mudslinging, keep in mind it's only purpose is to obscure your view in hopes you'll fall for the siren song of “court reform.”

This is Al Smith for the Montana Trial Lawyers Association.