When In Philadelphia, Sue Now, Sue Often

Conservative tort reform crusaders have a new target in their sights, and it is none other than the Philadelphia Lawyer and the courts and juries he practices before. Hostilities were officially declared this weekend, the articles of war delivered from the hardened one-percenter redoubt of the Wall Street Journal‘s editorial page, in an op-ed headlined “The City of Brotherly Torts.”

At issue is proposed legislation that would prevent Pennsylvanians from venue shopping their lawsuits. Plaintiffs would only be able to sue in jurisdictions where they live, where they were injured, or where the allegedly offending company was headquartered. In other words, a Pittsburgh plaintiff suing a Pittsburgh-based business couldn’t file in Philly anymore, which happens pretty frequently these days because local juries and jurists here have a reputation for soaking big companies. (Full disclosure: My wife is an attorney at a big Philly firm.)

It’s pretty typical for big cities with high poverty and high unemployment rates to have juries that tend to favor the little guy over big business. But Philadelphia is developing a reputation as an extreme example even by those standards. Earlier this year, the American Tort Reform Foundation—an outfit funded in part by Exxon Mobil and a Richard Mellon Scaife foundation—named Philadelphia the #1 Judicial Hellhole in America.

Now these kinds of lists are often idiotic, always subjective, and even more suspect when crafted by an ideological organization like the American Tort Reform Foundation, which no doubt put Philly atop its list not because a complex formula actually says Philly is the worst, but rather to bolster the prospects of the legislation and Governor Corbett’s broader tort reform agenda. The entire thing has the unmistakable, nasty sheen of a coordinated attack, financed by rich conservatives and corporations.

So it’s really, really tempting to dismiss all of this as so much tort reform hysteria.

But the thing is, the Wall Street Journal and the American Tort Reform Foundation seem to be on to something here. Back in 2009, at the height of the city’s budget crisis, the President Judge of Philadelphia’s Common Pleas Court made some unfortunate remarks in an interview with the Legal Intelligencer, suggesting that the city’s courts could help ease their budget woes by “taking away business from other courts.”

Pamela Pryor Dembe was talking about Philadelphia’s Complex Litigation Center, a division of the Common Pleas Courts created solely to deal with huge, complicated mass tort cases (think asbestos or Fen-Phen litigation). The center has gotten a lot of credit over the years as an efficient operation that’s far more capable of handling complex cases than your average Pennsylvania county court.

But in October a newish Portland-based think tank called the International Center for Law & Economics (funded in part by big corporations, including Google, Mastercard and AT&T) published a highly critical study of the city’s civil courts, singling the Complex Litigation Center out for special attention as providing “a unique combination of advantages for plaintiffs.”

Philadelphia trial lawyer Maxwell S. Kennerly (of the Beasley Firm) thoroughly dissected the study in a long post on his excellent blog, dismissing it as the work of just another “corporate shill tort reform group.” But while it’s clear that ICLE gets corporate cash, it’s staffed by people with impressive resumes who can’t really be dismissed as shills. And indeed, Kennerly ultimately does not try to argue that the study is wrong when it concludes Philadelphia’s courts are unusually friendly to plaintiffs. Rather he contends that the rest of the state is biased in favor of the defendants.

And maybe he’s right (that’s a topic way beyond the scope of this column). But when you’ve got Philly on one side, and the rest of the state on the other, you have to figure the tort reform legislation has a shot at passing, even if/when the trial lawyers lobby hard to stop it.

So what would it mean for Philly if it was no longer the Tort Depot of Pennsylvania? That’s hard to say. It might slightly ameliorate the city’s anti-business reputation. But it wouldn’t help the legal industry any, which has been backbone of the city’s economy ever since the phrase “Philadelphia Lawyer” was coined, way back in 1788.