Published: August 09, 2008 11:32 pm         

Lawyer says legal climate not hurting business

Beckley attorney Thomas Rist feels the legal profession is taking an unfair shellacking by special interest groups that blame lawyers for West Virginia’s dead-last ranking by Forbes magazine in doing business.

And Rist, while only 31, has the experience to make comparisons.

Early on in his career, he practiced law, and still holds a license to do so, in California, juggling his time among San Diego, Los Angeles and San Francisco.

Unable to ignore the pull of his home soil, Rist returned and put out his shingle in a law firm on Prince Street that for decades was home to Beckley’s daily newspapers.

“One thing I’ve noticed, outside of California, being so busy with cases, is that the same case is going to get filed, no matter where you go in the United States,” he said in an interview last week.

Relying on the Forbes ranking of states, Citizens Against Lawsuit Abuse suggested the reason for the last-place status of West Virginia is the legal climate. Director Steve Cohen wryly said the official slogan here should be “Open for Lawsuits,” not business, as Gov. Joe Manchin has been touting since taking office.

“If you’re injured in an accident in Virginia, you take that same accident, same circumstances in West Virginia, a case gets filed, if a case has to be filed,” he said.

“Same thing if you get injured in West Virginia. That case is going to get filed in Virginia, Tennessee, California. Go to any of these jurisdictions. We don’t have some kind of unique system in West Virginia that allows any type of lawsuit to be filed.”

Cohen and other lawyer critics often bemoan “frivolous” lawsuits that clog the judicial system.

Yet, in his experience, Rist said anyone named in a lawsuit can pursue three avenues of relief to avoid being victimized by baseless litigation.

“There are a lot of built-in protections, and that’s the same everywhere,” he said.

First off, any defense attorney worth his attaché case need only to file a motion for summary judgment, Rist pointed out.

“That’s where you go to court and say, ‘Here’s the law, here’s the facts of the case, and when you apply the law to the facts, this case has to be thrown out,’” Rist said.

Not unique in West Virginia, this option can be exercised anywhere in the country, he noted.

An example of a case that can get tossed is the ballyhooed “Hold the Cheese” suit, in which a diner patron filed a $10 million damage case on the basis an allergic reaction followed when a hamburger served contained cheese that wasn’t ordered.

In California, such a case would get lost in the shuffle, and in West Virginia, it won’t reach first base with a defense attorney filing a motion for summary judgment.

That failing, Rist said, the defense can leave its arguments before a jury, comprised of ordinary men and women.

“They’re told the law and then they make the decision,” Rist said. “And the last thing is the ability to appeal the case, if you don’t agree with the verdict. So, there are three very distinct ways that a case can be resolved if it’s ridiculous or frivolous as what some of these cases seem to be.”

Rist doesn’t dispute the economic hard facts of life in West Virginia, but is puzzled why anyone can point the finger of blame at lawyers — especially given the myriad of judicial reforms the Legislature has penned into the State Code in recent legislative sessions, from medical malpractice changes to the end of third-party bad faith lawsuits that benefited the insurance industry.

Like many of his peers, Rist took his education across the state line soon after earning a degree and went where the pastures seemed more verdant.

“I always felt guilty about not being here and trying to help to do something to further our state, to further what we’re doing here,” he said.

“We just need to turn our focus in West Virginia toward the small businesses that are going to grow our state. If you look at the types of business we could bring into West Virginia, we could get the small entrepreneurs. Those are the future Henry Fords, and Michael Dells, and Bill Gateses. Bill Gates didn’t start with 1,000 employees. He was a small business owner.”

Rist remembers going into the Beckley business district with his mother as a child, when the city’s decline was just starting, succumbing to the invasion of shopping centers. His grandfather once ran a prosperous pharmacy in the city. In the 1970s, storefronts began to be boarded up and decay set in.

“Did the downtown of Beckley die off, so to speak, or move out, because of a lawsuit?” he asked. “Or because business decided it was cheaper to go somewhere else. It moved to Raleigh Mall, then Crossroads Mall, and then Wal-Mart.”

Rather than blame lawyers or government, he said, the business community needs to look inward to see just what went wrong in the past three decades.

“What we should do is look at it and say what do we need to do to move West Virginia forward,” he said. “What can we do to help? What can we do to make downtown vibrant? Why don’t we look like downtown Lewisburg? Why don’t we look like downtown Fayetteville? What can we do to bring that back here? It’s not lawsuits that have caused this. It’s that commerce has moved out. We’ve had some sprawl that happened in Beckley. I haven’t seen that lawsuits were blamed.”

Rist faulted one legislative action, the imposition of a $250,000 ceiling on non-economic damages — the pain and suffering, in contrast to actual money losses in an injury.

“We have a lot of good doctors in West Virginia,” the personal injury attorney said. “We have a lot of good health practitioners here and I’m very complimentary of them. But if you get someone who’s not doing their job correctly, you get someone who is addicted to pain killers, for example, if you go in to get your right knee worked on and they work on your left knee, and your left leg ends up having to be amputated — those are the types of cases where caps don’t make any sense.”

Rist clearly distinguishes between the necessary lawsuit and the frivolous.

“Is that the case that really hurts our legal system?” he said of the wrong-knee surgery.

“Or is it the case that gets filed because someone goes down to the hospital with a scrape on the knee and doesn’t like the way the Band-Aid was put on them and they find an attorney that will take that case and they file a medical malpractice suit against the hospital, and the total value of it should be zero and maybe the hospital pays something to get rid of it? That’s kind of where you see tort reform, and good attorneys won’t take those cases.”

Yet, he says, those are the frivolous cases that attract media attention, whereas ones in which lawyers win summary judgments are largely ignored by the press.

Rist met his wife in California and while the couple loved life in California, they began to look at the cost-benefit analysis and the fact they were raising a daughter.

“Do you want your kid to grow up that far away from family?” he asked.

“Another thing is when you’re sitting in a 12-lane highway about 5:30, especially when I had to drive from Los Angeles to San Diego, you start missing our country roads.”

— E-mail:

mannix@register-herald.com