Editor's note: The Consumer Attorneys of California president responds to a Dec. 21 Viewpoint column by Kimberly Stone of the tort reform group Civil Justice Association of California.
I read with a mix of interest and incredulity your recent opinion piece in The Recorder entitled, "It's Time to Take California Back From the Plaintiffs Lawyers." I am sure I speak for many if not all lawyers in California, including the vast numbers who don't represent plaintiffs, in rebuffing what are simplistic and off-target arguments. No one really buys what you are trying to sell, especially sophisticated lawyers who read The Recorder. Let me count the ways you obfuscate.
You claim class actions are too easy for plaintiffs to litigate in California, but fail to acknowledge that most class actions are moved to federal court under the Class Action Fairness Act, making them federal matters subject to the judicial rules that govern such cases in all 50 states. You then point out that a denial of class certification is directly appealable, but fail to mention that the granting of a class certification action is reviewable by writ petition to the court of appeal. You also forget to tell the readers that your corporate-backed organization tried unsuccessfully for the past several years to win changes to that rule in the Legislature. What you really want is a direct appeal to stall class actions, which would only further clog our already overburdened courts.
You then point to disability access lawsuits as a particular problem, an ironic argument given that your organization joined with my own as part of a task force that included Senate President Pro Tem Darrell Steinberg, the lawmaker who authored a law this past year to make unmeritorious disability suits much more difficult to pursue. You also conveniently failed to mention the recent California Supreme Court decision awarding attorney fees to a business owner sued in one such lawsuit. Such holes in your rhetoric ignore the new reality after 2012: We have struck a balance between protections for small businesses and upholding the important civil rights of disabled Californians.
Likewise, why fail to mention that the passage of Proposition 64 several years ago made it more difficult to bring Prop 65 environmental lawsuits, which are now limited to people who suffer actual injury? Oh yes, it's because in a perfect world I suspect you would prefer a California with no consumer warnings about cancer-causing agents manufactured by some of the corporations that underwrite your organization.
Not letting the facts get in your way, you insinuate that lawsuits are on the rise in California when the cold, hard statistics prove you patently wrong. The Judicial Council reports that during the decade from 2001 to 2011, civil tort lawsuits dropped by about 30 percent, while suits by your member organizations and other businesses against each other increased substantially during the same period. Isn't that an important fact people should know? And what about frivolous business-versus-business lawsuits clogging the courts, like McDonalds suing Burger King because they claimed the Whopper is tastier than the Big Mac?
We know you don't want to see changes to the $250,000 non-economic damages cap in medical malpractice cases, but fairness would seem to dictate that telling people the cap has been in place at the same amount since 1975 and if adjusted for inflation (like everything else in real life) would now exceed $1 million. In the meantime, aren't you concerned about the sheer number of medical errors in this state amid the rise in corporate ownership of hospitals and HMOs? I'm concerned for my family and friends about medical negligence that may kill as many as 30,000 Californians each year. We have to do something to make the doctor's office and hospitals safe again, not shield the corporate medical industry from accountability.
I think the readers of this paper can judge for themselves if pre-dispute binding arbitration is fair. Personally, I take the word of studies that have found such corporate-controlled arbitration dramatically favors the businesses that hire the arbitrators who decide such cases.
Instead of filling the heads of smart and sophisticated lawyers with this nonsense, why don't you and your corporate masters focus on the lack of funding for our courts? These remain tough enough economic times, and we all should be pulling together to return basic court services to our citizens. Instead of taking time to attack the hardworking plaintiffs lawyers who represent regular Californians every day, let's all pull together to make sure that courts are open for women who need protection from domestic violence, the children who want to be sheltered and sometimes adopted, the elderly who need the appointment of a guardian.
As for the executives at Fortune 500 companies who participate in illusory opinion surveys that presume to rate lawsuit climate or declare California a "Judicial Hellhole," perhaps you can carry back some advice to them at the next swank gathering of the tort reform crowd: Maybe they'd be better advised to stop spending so much time and money on tort attack PR and phonied-up studies, and instead spend it making their products safer and perhaps better protecting their employees and customers. Only then can they take credit for helping make California, a lovely and prosperous state that favors the sweet spot between capitalist success and consumer protection, an even safer and better place to live and do business.
Brian Kabateck is a Los Angeles plaintiffs lawyer and partner in Kabateck Brown Kellner as well as president of the Consumer Attorneys of California.
The Recorder welcomes submissions to Viewpoint. Contact Vitaly Gashpar at vgashpar@alm.com.
