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

The assault upon the citadel: advocates of open courts are battering the 'citadel' of court secrecy, but it's still standing. Secret settlements deprive Americans of an effective tort system and jeopardize public health and safety. Trial lawyers must join the fight.

Article Excerpt
The assault upon the citadel,'" Dean William Prosser wrote in a famous law review article in 1960, "'is proceeding in these days apace.' ... With the passage of nearly thirty years, a goodly part of the citadel still holds out; but the assault goes on with unabated vigor." (1)

Prosser was writing about the long struggle for enhanced consumer protection; his "citadel" was the old, oppressive, contractual doctrine of privity, which eventually gave way to strict products liability. But his words would be as appropriate today to describe the struggle against the secrecy that has pervaded the American civil court system, particularly in settlement agreements, since the 1970s. (2)

Prosser did not exaggerate when he called the efforts to achieve better consumer protection a "battle." American industry fought fiercely against the proconsumer efforts of which he was the intellectual leader. Similarly, the movement to achieve greater openness in our courts is strongly resisted--and by essentially the same entities who opposed Prosser's enlightened ideas. There is much left to do, but the past five years have seen four major developments.

Restrictions on secrecy. In the late 1980s, the public became more aware of what practicing lawyers had long known--that corporate defendants were keeping the citizenry ignorant of many details of significant lawsuits by insisting on secrecy as a condition of settlement. Major exposes in the news media brought to light both secrecy in litigation and the increasing efforts by the consumer bar to counter it. (3)

Unsurprisingly, the business community reacted strongly to this new attention. In 1991, Professor Arthur Miller of Harvard Law School wrote a defense-bar-funded article that has become a favorite of secrecy advocates. (4) Miller observed that, at that time, just four states (Florida, New York, Texas, and Virginia) had adopted court rules or statutes to restrict secrecy. (5) He also noted that 22 other jurisdictions (plus the federal courts) that had considered antisecrecy proposals had not adopted them.

Since then, many states and federal district courts have adopted restrictions on court secrecy, including a number of the jurisdictions Miller cited as having rejected them. Today, secrecy is regulated to at least some extent through statutes and court rules in 41 state court systems and in 50 of the 94 federal districts--a vast increase in the regulation of secrecy in less than 20 years. (6)

It is still true, as Miller observed, that legislatures and court rulemaking bodies do not adopt all of the antisecrecy measures that are proposed to them. But that means only that the business community lobbies hard against every proposal to make the courts more open.

Academic interest in secrecy. There has been a parallel increase in academic interest in court secrecy. The number of law journal articles on the subject has grown enormously, and two law reviews (the University of South Carolina Law Review and the Chicago-Kent Law Review) have held conferences and published special issues devoted to secrecy. (7)

More important than the number of law review articles, however, is the growing conclusion of most scholars that the routine use of court secrecy disserves the public. This criticism extends to blunt assertions that some uses of secrecy mechanisms violate criminal statutes. (8)

Federal Judicial Center study. In 2004, the Federal Judicial Center (FJC) published a major study of sealed settlements in federal courts, conducted at the request of the federal courts' Advisory Committee on Civil Rules. (9) The FJC researchers examined records of 288,846 cases that terminated in calendar years 2001 and 2002 in 52 of the 94 federal district courts--and identified 1,270 sealed settlement agreements that had been filed in those courts (0.44 percent of the sample of cases). (10) In 97 percent of the cases with sealed settlements, the complaints remained unsealed, allowing access to at least some information. (11)

The FJC researchers' most basic quantitative finding immediately became a mantra for secrecy advocates: "Sealed settlements are filed in less than one-half of...