Though most post-election analyses have attributed Democrats’ gains in Congress and state legislatures to voter dissatisfaction with the war in Iraq and the Bush administration’s execution thereof, many personal injury lawyers would nonetheless have us believe that America’s electorate actually intended to signal its displeasure with tort reform.

For example, in the November edition of Vested Interest, the monthly newsletter published by the Illinois Trial Lawyers Association, ITLA president Judy L. Cates’ column, “Happy Days Are Here Again!”, encouraged members to “celebrate” the sweep of local and state judicial races by the party she believes is most amenable to the vested interests of trial lawyers.

Some ITLA members apparently celebrated by combining to file twice as many asbestos lawsuits in Illinois’ notorious Madison County during the two weeks following Election Day (41) than were filed during the two weeks prior (20). They clearly anticipate a more permissive judicial climate and bigger contingency fees.     

What’s less clear is why voters, generally, and workers, specifically, would consider a growing number of lawsuits to be in their interest. Well, they probably don’t if they know that the proliferation of lawsuit abuse in Illinois and elsewhere during the last decade has taken a significant toll on state economies and middle class employment.

The American Tort Reform Foundation’s annual Judicial Hellholes report just named Illinois’ rural MadisonCounty, neighboring St. Clair County, and populous CookCounty as three of the six worst jurisdictions in the nation when it comes to defendants getting a fair civil trial. (The entire State of West Virginia, Miami-Dade and Palm Beach counties in South Florida, and the Rio GrandeValley and Gulf Coast of Texas comprise the other three.)

“With three of the six worst counties for litigation abuse right here in Illinois, it should come as no surprise that companies like Honda are choosing to expand their operations and build new plants in other states,” explained Illinois’ outgoing state treasurer, Judy Baar Topinka, while meeting with reporters last summer.

Proving Topinka’s point, Chicago, home to about 15 percent of the state’s once booming manufacturing sector, lost 453 plants over the past five years.[i] In 2005 alone, 106 plants left CookCounty[ii] while the state as a whole lost another 32,000 good-paying manufacturing jobs.[iii] And as the national economy grew at an average annual rate of 2.9 percent when coming out of recession from 2002 through 2005, Illinois' economy struggled with growth of only 1.8 percent, nearly 40 percent less.[iv] 

Of course there are many factors behind manufacturing job loss, but it’s no coincidence that Illinois’ industrial economy is in decline while the litigation business is booming.[v] With Judy Cates and her ITLA members filing more lawsuits in plaintiff-friendly CookCounty, an October 3 story in The National Law Journal reported that law firms specializing in corporate defense there are beefing up. The story quoted Citigroup commercial loan manager Dan Bishop saying that Chicago “firms are growing, they’re building up the number of lawyers and their hours are growing.”[vi]

Also growing, thankfully, is the number of responsible policymakers at all levels of government who understand empirically and intuitively that a high-litigation climate is bad for business and economic growth. On this page November 1, New York City Mayor Michael Bloomberg (R) and Senator Charles Schumer (D-NY) wrote of what they see as the four biggest problems threatening the international competitiveness of New York’s financial services industry. “Frivolous litigation” is among the four.

More recently, in a speech to the New York Economic Club, Treasury Secretary Henry Paulson echoed the bipartisan concerns of Messrs. Bloomberg and Schumer when he said the United States’ economy is overlitigated. And the Washington Post chimed in with a November 22 editorial, adding that, as "a share of gross domestic product, U.S. tort costs are twice those in Germany and Japan and three times those in Britain.”

Naturally, business people on the costly frontline of abusive litigation had accurately assessed its enervating drag on our economic bottom line before government officials and the media did. Many had been saying for years what New York Stock Exchange Chief Executive John Thain reiterated in September: “Class action lawsuits and the cost of litigation pose a tax on all companies in the U.S.”  He added that America’s litigation climate also acts as “a deterrent to foreign companies looking to expand in this market.”

Personal injury lawyers are still free to file lawsuits in Judicial Hellholes. But, election results not withstanding, they shouldn’t kid themselves about voters’ thinking on the need for tort reform. Though the trial bar’s considerable influence with the Senate’s incoming majority will likely slow the pace of reforms at the federal level for awhile, county and state judges, state legislators, and governors of all political persuasions will be wise to continue promoting both evenhanded civil justice and robust economic growth. The employment and prosperity of their constituents depend on it.        

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Sherman Joyce is president of the Washington, D.C.-based American Tort Reform Association. Its newly released 2006 Judicial Hellholes report is posted at www.atra.org.

[i] See Lorene Yue, IL Loses 32,000 Manufacturing Jobs Despite Adding Plants, Crain’s Chicago Business, Feb. 21, 2006, at http://chicagobusiness.com/cgi-bin/news.pl?id=19600.