Published: August 14, 2008 10:26 pm         

‘Loser pays’ concept advocated by CALA

Trial lawyers can roll the dice in West Virginia’s court system, gambling that a sympathetic jury comes up with the magic number in a personal injury award.

If not, the plaintiff is hit with the bill for legal services — and so is the defendant.

Steven Cohen, executive director for Citizens Against Lawsuit Abuse, wants to reform the judicial system so that West Virginia adopts the “loser pays” concept that governs the courts of England.

“It’s modeled after the British system,” Cohen said.

“If you wish to be a plaintiff in a lawsuit, you run the risk of incurring the cost for both parties in the suit if you lose. It makes a personal injury lawyer think long and hard about how legitimate their plaintiffs are. One of the reasons our lawsuit system is broke now is greedy personal injury lawyers can target a deep-pocketed plaintiff in what’s routinely known as legal extortion, where the cost of settling is less than taking the case to trial.”

Cohen’s observations follow the recent rankings by Forbes magazine on how states fare in terms of business climate. West Virginia was ranked dead last, prompting CALA to renew its calls for more judicial reforms.

Last week, however, Beckley attorney Thomas Rist disputed Cohen’s take on the Forbes report, saying the legal climate isn’t hurting business, but rather the business community simply has made decisions that, in places such as Beckley, have emptied downtown areas in favor of strip malls and shopping centers. What’s more, Rist concluded that more focus needs to be given to small businesses, the backbone of West Virginia’s economy.

Cohen says West Virginia still suffers under a “reputation as a judicial hellhole” because trial lawyers can file outrageous claims in hopes of hitting the jackpot before a jury.

“Courts here are viewed as places which dispense cash more than justice,” he said.

Not long ago, he pointed out, the National Law Journal reported that three of the seven largest verdicts in state courts within the past year were delivered in a West Virginia courtroom.

“For tiny West Virginia, that makes the statement about our court system,” Cohen said.

“That addresses the overall reputation of West Virginia courts.”

Cohen isn’t sure if CALA is prepared to seek legislation for a “loser pays” concept in the 2009 session, but said the state could move in that direction as a means of erecting barriers against frivolous lawsuits.

Recently, a woman filed suit to recover alleged damages suffered when she toppled from a horse after imbibing too much at a party, blaming the host for her injuries, Cohen said, adding the lawsuit puts the horse owner on the defensive, forced to shell out money for a lawyer.

“The poster child for this is the immigrant couple that ran a dry cleaners in Washington, D.C.,” Cohen said.

“A customer alleges that his trousers were lost and he filed a $65 million lawsuit. This is a true story. The suit was thrown out but not before the couple had spent $100,000 trying to defend themselves.”

While the case wasn’t filed in West Virginia, Cohen said it typifies the legal climate in which small businesses struggle in this state.

“I don’t know if it’s ready to be presented legislatively,” he said of the “loser pays” idea, “but it definitely can pave the way for reforms that could potentially cut down on frivolous suits that abuse the system.”

Cohen acknowledged major strides taken by the Legislature in recent sessions, among them medical malpractice reforms and the end of third-party bad faith suits, but “there’s so much more that needs to be done.”

“West Virginia is one of 11 states that has no intermediate level of appeal,” he said. “We think that might improve the climate for judicial fairness here. Liberalizing the appeals process would be a major step.”

— E-mail:

mannix@register-herald.com