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ATLA's law firm takes 'reform' fight to the courts: when the right to trial by jury is threatened, the Center for Constitutional Litigation steps in to support the plaintiff side.

Article Excerpt
Tort "reform" has grown into a major industry. Once, hills to regulate litigation made brief, disparate forays into the legislative process; now, these measures arise in many forums backed by big money. An army of lobbyists continuously plies legislatures, judicial organizations, law-improvement groups, and legal academia with liability-limiting proposals. A specialized public-relations machinery, dependent on tort "reform" retainers for its existence, constantly promotes an antilitigation agenda, biasing the media, the jury pool, and policy-makers. Politicians wave the tort "reform" banner to guarantee a full war chest for the next election cycle.

Tort restrictionists not only push damages caps, but have also redoubled their efforts to erect unreasonable obstacles before the courthouse door. The policies they pursue deter meritorious claims or, with much the same effect, render them more expensive to bring, more difficult to prove, and more likely to result in diminished recoveries. And they seek change in both courts and state constitutions to validate their errant designs.

Usually, when a state legislature enacts a tort "reform" measure, the Center for Constitutional Litigation (CCL) begins discussing how to challenge the constitutionality of that new deprivation of people's rights. CCL has built a body of case law that vindicates the rights these restrictionists would deny. The center argues for citizens' right to a day in court, civil juries' right to exercise full common law authority, and courts' right to serve as a coequal branch of government, not one subservient to political whims.

For example, in Jinks v. Richland County, CCL represented the plaintiff in validating an important federal tolling statute. (1) In another U.S. Supreme Court case, Angle v. Guinn, CCL represented the Nevada legislature and successfully argued that the High Court should deny certiorari in a case challenging the state supreme court's authority to be the final word on questions of state constitutional law. (2)

Although CCL continues to challenge the constitutionality of caps on damages--the favorite form of tort restriction--it also litigates the constitutionality of other initiatives that limit access to justice.

Contingency fees

Contingency fee arrangements, widely acknowledged as the key to the courthouse for most Americans, are under concerted attack. Last year, the misnamed Common Good, a tort "reform" group, filed petitions in 12 state supreme courts seeking changes to the rules of professional responsibility that would restrict the conditions under which a contingency fee could be charged and the percentage of a settlement that could he the basis of a fee. In addition, proposals to limit these fees appear headed to the ballot in several states. The U.S. Supreme Court recently accepted Banks v. Commissioner of Internal Revenue, to be heard next term, in which the justices will consider whether the amount of a judgment paid as a contingency fee is taxable. (3)

Common Good's petitions would require personal injury lawyers who intend to charge a contingency fee to provide a detailed "notice of injury" to the prospective defendant before filing a suit. The notice...

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