Editor: Describe the Institute.
McBride: The Institute is a separately incorporated affiliate of the U.S. Chamber of Commerce. We are a 501(c)6 organization. Our mission is to make America's legal system simpler, fairer and faster. We do that through a multi-faceted comprehensive agenda, which includes, among other things, advocating federal legislation to improve the legal climate in the country, such as class action reform, asbestos reform and medical malpractice reform. These three pieces of legislation rank high on President Bush's agenda and are being teed up so that they are ready to go in the 109th Congress. We also advocate other pieces of federal legal reform legislation such as obesity litigation legislation and the Lawsuit Abuse Reduction Act that addresses issues covered by Rule 11.
Editor: I would like to focus on just a few of the many issues that are on the Institute's plate. First tell us about federal class action reform.
McBride: Class action reform addresses serious flaws in our legal system. Although class action lawsuits can be filed in federal or state court, many frivolous cases are filed in trial courts where plaintiffs' attorneys feel they will get preferential treatment or a large jury award. As a result, there has been rampant venue shopping by many plaintiffs' attorneys who seek a home field advantage. In Madison County, Illinois, for example, there is a very close relationship between the trial bar and some of the judges there.
The Class Action Fairness Act would allow defendants under certain circumstances to move a class action from a state trial court into federal court that is better equipped to deal with the complexities of the case. The legislation would also curb settlement abuses - where millions of dollars go to plaintiffs' counsel while the plaintiffs get discount coupons or other token benefits of little or no value. The Act would empower courts to scrutinize settlements to make sure they are fair to those on whose behalf the class action has been brought.
Editor: What are the prospects for the Class Action Fairness Act?
McBride: They are excellent. The bill has already passed the House of Representatives. It has the support of more than sixty Senators - which as you know is the magic number to cut off a filibuster and to allow the Senate to take an up or down vote on a piece of legislation. The President had an event the first week of January this year with the leadership of the House and Senate to encourage them to pass the bill as a key part of his legal reform agenda. Senator Frist and Speaker Hastert have both taken to the floors of their respective chambers to endorse the legislation. Early indications show it will be one of the first items of business on the Congressional agenda and may come up as soon as early February.
Editor: Can you comment on federal asbestos reform?
McBride: As you know, asbestos litigation is a monumental problem. Over seventy companies have gone into bankruptcy as a result. As many as sixty thousand jobs have been lost over the last couple of decades - and many more are in jeopardy if the proliferation of litigation is not addressed. People who have been exposed to asbestos products and are currently ill from mesothylioma or asbestosis are having a hard time getting the compensation to which they are entitled. The courts have become bogged down. This has occurred because plaintiffs' lawyers have brought so many people into asbestos lawsuits who claim exposure but are not yet ill (up to 90% of the plaintiffs).
Democrats, Republicans, labor and business all seem to agree that handling the claims in court of people who are not ill has created a problem of crisis proportions and that now is the time to act. The current legislative proposal is for a national trust fund that would be paid for by insurers and defendant companies in asbestos litigation. This approach would take that litigation out of the courts and establish a claims process through the federal government.
Editor: What are the prospects for asbestos reform?
McBride: The prospects look good. Senator Specter from the Senate Judiciary Committee and former retired federal judge Edward Becker have been involved since early 2004 in what has become known as the Spector-Becker process to develop a trust fund and claims procedure. Their efforts are currently directed toward resolving the differences between trial lawyers and labor on one side and the defendants and insurers on the other. Currently, the Specter-Becker process is moving forward and various drafts of legislation have been put forward for the different sides to respond to. Senate Majority Leader Bill Frist has said that asbestos reform is one of his top priorities. Asbestos litigation reform is a very tough issue, very complicated and technical, but there is a true commitment on the part of all parties to move forward soon with reasonable legislation.
Editor: What about federal legislation to address the medical malpractice liability issue?
McBride: This is a crisis situation that threatens the lives of average people throughout the country. Doctors have been driven out of many parts of the country because of the high cost of insurance in areas where reform has not occurred. When you go into states that have not enacted medical liability reform, you often find there are not enough trauma doctors. OB/GYN's can't be found to deliver babies in many areas around the country.
There has been a groundswell of support from the general population for medical liability reform. The high number of frivolous lawsuits filed against doctors and healthcare providers drives up the cost of medical malpractice insurance - not only for the doctors who have been sued, but for all healthcare providers across the board. Capping non-economic damages in medical malpractice lawsuits, as well as caps on punitive damages for pharmaceutical companies and medical device manufacturers in certain circumstances, will help curb frivolous lawsuits and improve healthcare access for everyone.
Editor: What are the prospects for federal malpractice liability reform?
McBride: The exact form of the federal legislation is still taking shape - but would include caps on non-economic damages. The drafting process will soon be completed and a bill will be in the hopper and ready to go. Because of its popular appeal, the prospect for malpractice liability reform is excellent.
Editor: Tell us about the Institute's approach to state-based reform?
McBride: Our efforts involve a number of initiatives. We place great reliance on our Harris State Liability Systems Ranking Study. It will be released for the fourth consecutive year on March 8th. The results are based on the responses of fourteen hundred litigators familiar with defense litigation in various states. In each of the previous Studies, Delaware ranked number one for legal fairness.
Previous years' Studies ranked Mississippi as the worst state. That will not be the case anymore. This past June, Mississippi passed one of the most comprehensive legal reform packages in the country. The states in the Study's bottom ten are those where defendants feel they cannot get a fair day in court. We have a number of public awareness and education programs in place, both in the name of the U.S. Chamber and in conjunction with state and local chambers, to help citizens of those states understand the consequences of a poor legal environment. We look for every way possible to let people know what the practical effect of an unfair legal system is on their daily lives. Our efforts can be very effective as we found in Mississippi.
Another component of our state based-program is our voter education programs designed to let voters know how important their state supreme court and attorney general races are to legal reform, and which candidates are supportive of reform and which are opposed. Here too, we focus our resources on the states at the bottom end of the Harris Study, such as Illinois, home to the notorious jackpot jurisdiction of Madison County.
Editor: Where can our readers go for additional information?
McBride: The Institute's websiteis www.instituteforlegalreform.org. There are continual updates on that website regarding federal and state reform efforts. Another useful website is www.legalreformnow.com. This is a legal reform coalition website that the Institute initiated together with 39 other business and legal reform organizations. It is a clearing house for information on all things relating to legal reform.
Editor: What can they do to help?
McBride: They can join the Institute and work with our task forces to help us set our strategy and agenda on both the state and federal level.
We are optimistic about the passage of the key pieces of federal legislation I mentioned, but in Washington nothing is ever a sure thing. It is important that over the coming weeks your readers and other executives from their companies pick up the phone or log on to one of our web sites I mentioned and contact their Senators and Representatives to urge them to support legal reform, and to share with them their personal experiences that demonstrate the need for legal reform in Congress.
Achieving state-based reform is particularly important for companies that have facilities, employees or any other presence in one of the states at the bottom of the Harris poll. Their directors and officers should let the governors, the attorney general, and their elected state representatives know what they would like to see by way of state-based reform.
In discussing what you can do to help pass the much-needed federal and state legislation on the Institute's agenda, we have stressed the importance of contacting officials and your elected representatives. We have made it easy for you and others in your company to make these contacts. Each of the web sites includes an easy to use page that allows an individual to determine who their federal or state elected officials are and then type and transmit a message directly to those policymakers asking him or her to support one or more of the items on the Institute's agenda.