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December 16, 2007
State judges deny any ‘explosion’ in frivolous lawsuits
By Andrew Clevenger
Staff writer
Three-quarters of West Virginia’s circuit judges dispute the business
community’s complaints that the state is experiencing an “explosion of frivolous
litigation,” according to a new academic report.
West Virginia University political science professors Richard Brisbin Jr. and
John Kilwein published their findings in the October edition of the journal of
WVU’s Institute for Public Affairs.
The study, which examines a number of issues confronting the Mountain State’s
judiciary, is based in part on a 2005 survey of the state’s circuit judges,
magistrates and family court judges.
The vast majority of circuit court judges — 77 percent — responded that there
had not been an “explosion of frivolous litigation,” Brisbin and Kilwein report.
About one in five answered that there had been a slight increase in frivolous
litigation.
Also, when asked to identify the greatest problem confronting the state’s
courts, none of the 66 circuit judges named frivolous civil lawsuits, the study
states.
The annual statewide personal-liability caseload has declined, suggesting that
the courts are not being overwhelmed by tort cases, the study notes. According
to National Center for State Courts statistics, the number of tort cases peaked
seven years ago, rising from about 1,000 in 1997 to more than 2,600 in 2000,
then dropping to fewer than 700 in both 2002 and 2003.
“When coupled with data on the relatively stable trends in caseload, frequent
use of out-of-court settlement, and lack of trials, the responses of the circuit
judges suggest that popular conceptions of the frequency of frivolous suits in
West Virginia courts are often inaccurate,” the study states.
One possible way to address concerns over possible increases in personal-injury
lawsuits or frivolous lawsuits is to look at the causes of such lawsuits, the
authors write.
“[E]vidence suggests that many personal injury and employee-employer civil suits
are the result of weak or ineffective government regulation,” the study states.
“The elimination of causes might also entail better state enforcement of auto
insurance coverage requirements, more traffic police, more intensive regulation
of worker safety, ... better inspection of potentially dangerous products and
medical practices, more professional fire departments and more fire marshals
[and] the reconstruction of unsafe roads.”
The study acknowledges that such comprehensive change might not be politically
feasible, but encourages the Legislature to explore all available options.
The authors also call into question the methods of various studies that have
portrayed the state’s judicial system in a negative light.
“Business interest groups and the media produce stories about abusive litigation
that neglect important contradictory information, rely on erroneous information,
make assumptions based on inaccurate anecdotes, or use inadequate evidence and
slogans generated by the ‘research’ arms of interest groups who neglect normal
standards and practices of empirical social scientific inquiry,” the study
states.
The state of West Virginia’s judiciary has been a hot-button topic in recent
years, as both the U.S. and state chambers of commerce have repeatedly asserted
that the state’s legal environment has had a negative effect on business in the
state.
A year ago, the American Tort Reform Association cited West Virginia as the
biggest “judicial hellhole” in the nation. The business-funded group’s new
rankings are scheduled for release on Tuesday.
One frequent complaint is that provisions in the law create incentives for
individuals to file lawsuits that produce extra legal and insurance costs for
West Virginia businesses, Brisbin and Kilwein wrote.
“Unfortunately, the critics extrapolate their conclusions that these suits deter
economic growth in the state from incomplete data and indirect measurement and
analysis,” the study states.
The authors could not find an independent scholarly analysis of court damage
awards and insurance costs that compares West Virginia to other states.
“Therefore, linkage of court rules and legal provisions to economic growth is at
best a suspect assertion,” the study concludes.
To contact staff writer Andrew Clevenger, use e-mail or call 348-1723.
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