Home | Business News | Browse by Publication | T | Trial

Let the sun shine in: 'sunshine' laws do not 'chill' settlements, say advocates of open courts.

Article Excerpt
American lawyers recognize that open courts, and public proceedings and records, are hallmarks of our justice system. Yet most lawyers who represent consumers in U.S. courts are aware of the national public-policy debate on the frequent use and abuse of secrecy in our civil justice system.

"Secrecy" in this debate refers collectively no a number of legal mechanisms that may be used to conceal litigation information from the public, government regulators, attorneys handling similar cases, and, in some instances, other courts. This information may include, but is not limited to, discovery material, records of litigation results, the legal community's understanding of the litigation, and sometimes even the litigation's existence.

These secrecy mechanisms include negotiated agreements or court orders to:

* return discovery material to the producing party, keep its content secret, seal it, or destroy it

* keep secret one or more aspects of the case, such as the result, the amount of any compensation paid, and perhaps the fact that the litigation occurred

* seal court files

* create or alter court records to make it difficult or impossible to tell what a case was about, who the parties were, what the disposition of the case was, and, in some instances, to expunge all official references to the case

* vacate a previously entered judgment or other court order

* de-publish a previously published court decision.

While the means may vary considerably, the result and the intent of using any of these secrecy mechanisms are the same.

There will be times when some confidentiality is justified, or even vital, and these secrecy mechanisms are usually entirely legal.

But secrecy can lead to undesirable results, such as when it hides from government regulators and the scientific community information that is critical to public health and safety, removes substantial matters of public concern entirely from the justice system's scrutiny, and multiplies the cost to parties and the court system by requiring repeated litigation of the same facts. Recent real world examples include litigation concerning sexual abuse by clergy, (1) Firestone tire failures, (2) and dangerous baby products. (3)

ATLA long ago took a position against these types of secrecy abuses in litigation. (4) Secrecy tan also be abused through excessive use--when the "exception" of secrecy swallows the "rule" of openness--which can degrade the legal system's public nature and lessen the public's confidence in the courts as the proper forum for resolving disputes.

Any of the secrecy mechanisms described above may be proposed as an element of a settlement agreement, and they often are.

The considerable financial leverage of many defendants and their insurers makes a mockery of any notion that plaintiffs' agreement to secrecy is secured "voluntarily." For years, consumer lawyers have complained that ethical and moral conflicts arise when their clients are presented with demands for secrecy during settlement negotiations. (5)

Curbing secrecy abuse

In response to the emerging understanding of secrecy's pitfalls, numerous court systems and state legislatures have sought to restrict litigants' opportunities to keep their litigation transactions secret, either by prohibiting some secrecy arrangements outright or by narrowing the circumstances under which they will be permitted. Legislative attempts to do this have often failed, but the judiciary's efforts to regulate the process through court rules have been more successful. (6) Each year, more court systems consider whether there is too much secrecy in litigation and what can be done about it. Judges are more attentive to the problem than they were a decade ago, and news media are more supportive of restricting secrecy. (7) At least one legal-ethics board has considered secrecy-related issues. (8)

Different jurisdictions have taken varied approaches, often depending on the particular secrecy mechanism addressed, but their thrust is usually to require greater judicial scrutiny rather than to ban secrecy altogether. Some examples are:

* declaring that there is a presumption of openness for all court records in the jurisdiction

* limiting circumstances in which protective orders may be entered for discovery material

* requiring a showing of good cause before approving secrecy, with the burden on the secrecy proponent

* requiring public hearings before secrecy orders are granted

* allowing intervention in secrecy proceedings by interested nonparties (such as news media or consumer protection...

View this article FREE - Now for a Limited Time, try Goliath Business News
Free for 3 Days!