4. ATRA's Agenda: Fair Laws, Fair Judges, Fair Courts
ATRA supports an aggressive civil justice reform agenda that includes:
Health care liability reform
Class action reform
Promotion of jury service
Abolition of the rule of joint and several liability
Abolition of the collateral source rule
Limits on punitive damages
Limits on noneconomic damages
Production liability reform
Appeal bond reform
Sound science in the courtroom
Stopping regulation through litigation
5. ALEC
• Members of the Civil Justice Task Force have
been at the forefront of the efforts to restore
fairness and predictability to the civil justice
system. The Task Force has worked diligently to
promote systematic fairness in the courts
through bills to discourage frivolous lawsuits, to
fairly balance judicial and legislative authority,
and to treat defendants in a consistent manner.
In the most recent legislative session, ALEC
members have introduced over 100 bills based
on ALEC’s legal reform model legislation.
6. LEGISLATION THROUGH REGULATION
*New proposed Federal Regulations by the Bush
Administration would “preempt lawsuits that conflict with
federal standards.”
WHERE :
National Highway Traffic Safety Administration
Food and Drug Administration
Various Banking Agencies
7. NHTSA
• *Aug 19, 2005 NHTSA issued a long-
awaited proposal to improve strength of
vehicle roofs, which have been known to
cave in during rollovers causing serious
injury and death.
• Specifically, “it would preempt all
conflicting State common law
requirements, including rules of tort law.”
8. FDA
*FDA has taken a different approach by
“intervening in cases brought by
individuals against drug and medical-
device manufacturers that involve differing
interpretations of FDA rules.
9. OCC
*Office of the Comptroller of the Currency
issued a broad rule in 2004 determining
“that state law protecting consumers from
abusive lenders was preempted by the
National Bank Act.” It also eliminated the
authority of state attorneys general to
enforce state laws over national banks
and their subsidiaries, such as mortgage
companies.
10. OCC
*OCC filed suit in June against New York
Attorney General Eliot Spitzer because he
asked in April to review the records of a
number of banks regarding interest rates
on home mortgage loans.
12. JOINT AND SEVERAL LIABILITY
Civil procedure, civil liability
SECTION 16. Section 15-38-15 of the 1976 Code, as
added by an act of 2005 bearing ratification no. 23, is amended
to read:
"Section 15-38-15. (A)(1) In an action to recover damages
resulting from personal injury, wrongful death, or damage to
property or to recover damages for economic loss or for
noneconomic loss such as mental distress, loss of enjoyment,
pain, suffering, loss of reputation, or loss of companionship
resulting from tortious conduct, if indivisible damages are
determined to be proximately caused by more than one
defendant, joint and several liability does not apply to any
defendant whose conduct is determined to be less than fifty
percent of the total fault for the indivisible damages as
compared with the total of: (i) the fault of all the defendants; and
(ii) the fault (comparative negligence), if any, of plaintiff. A
defendant whose conduct is determined to be less than fifty
percent of the total fault shall only be liable for that percentage
of the indivisible damages determined by the jury or trier of fact.
13. (B) Apportionment of percentages of fault among defendants is to be determined as
specified in subsection (C).
(C) The jury, or the court if there is no jury, shall:
(1) specify the amount of damages;
(2) determine the percentage of fault, if any, of plaintiff and the amount of recoverable
damages under applicable rules concerning 'comparative negligence'; and
(3) upon a motion by at least one defendant, where there is a verdict under items (1)
and (2) above for damages against two or more defendants for the same indivisible
injury, death, or damage to property, specify in a separate verdict under the procedures
described at subitem (b) below the percentage of liability that proximately caused the
indivisible injury, death, damage to property, or economic loss from tortious conduct, as
determined by item (1) above, that is attributable to each defendant whose actions are a
proximate cause of the indivisible injury, death, or damage to property. In determining
the percentage attributable to each defendant, any fault of the plaintiff, as determined
by item (2) above, will be included so that the total of the percentages of fault attributed
to the plaintiff and to the defendants must be one hundred percent. In calculating the
percentage of fault attributable to each defendant, inclusion of any percentage of fault of
the plaintiff (as determined in item (2) above) shall not reduce the amount of plaintiff's
recoverable damages (as determined under item (2) above).
(a) For this purpose, the court may determine that two or more persons are to be
treated as a single party. Such treatment must be used where two or more defendants
acted in concert or
14. VENUE
With regards to corporations, the legislation
establishes criteria for determining a principal
place of business; in considering the proper
place for venue, the bill provides that owning
property and transacting business in a
county is insufficient in and of itself to
establish the principal place of business for
a corporation.
17. WORKERS COMPENSATION
“REFORM” LEGISLATION
• Eliminates the W/C Commission
• Department of Insurance In Charge
• ALJ’s handle hearings
• AMA Guidelines as Bible
• No recovery for failure to use safety equip
• No rights to Undocumented workers
• Second Injury Fund
20. NOT A DEMOCRATIC OR
REPUBLICAN ISSUE
IT’S ABOUT JUSTICE
• Bipartisan equals success
• Pendulum always swings
• Justice, Justice, Justice
• At what cost justice, at all cost justice
21. POLITICAL INVOLVEMENT
• We took the Money
• It’s a matter of survival
• Get onboard the train before it leaves the
station
22. FRAMING THE DEBATE
• Truth does not always prevail
• Sworn to uphold truth vs. Sworn to Win at
all cost
23. The Truth About the McDonalds
Coffee Case
• Perhaps the most well-known "frivolous
lawsuit" is the story of Stella Liebeck - the
woman who was burned by hot coffee
from McDonalds. Here are the facts about
the McDonald's lawsuit; decide for
yourself if the suit was frivolous:
24. One more time
• 1: Stella Liebeck was a 79-year-old grandmother who was the
passenger in her grandson's car.
• 2: McDonalds served the coffee at roughly 190 degrees. 190
Degree liquid will cause third-degree burns within 2-7 seconds
of contact with the skin.
• 3: Stella was wearing cotton jogging pants, and the 190 degree
liquid soaked into the pants. She received third-degree burns
to her thighs and genitals.
• 4: McDonalds admitted that the coffee was not fit for human
consumption at the temperature they served it.
• 5: Over 700 men, women, and children had been burned prior
to Stella's lawsuit.
• 6: Stella offered to settle with McDonalds just for her medical
bills. They refused.
25. “Every man is entitled to his own
opinion, but no man is entitled to
his own facts.”
President Ronald Reagan
26. SOUNDBITES---MISNOMER OF
BILLS
• Economic Development, Citizens, & Small Business Protection
Act.
• Jury Patriotism Act
• Non-Economic Damages Award Act
• Assumption of Risk Act
• Commonsense Consumption Act
• Intrastate Forum Shopping Abuse Act
• Legal Consumer’s Bill of Rights Act
• Private Attorney Retention Sunshine Act
• Quality Education and Teacher and Principal Protection Act
• Truth in Damages Act
• Volunteer Immunity and Charitable Organizational Liability Limit
28. “Candidates should always
speak and communicate to
voters on or below a 7th grade
education level.”
Leadership Institute
Candidate Development School
29.
30. WHO WOULD YOU CHOOSE TO
REPRESENT YOUR CHILDREN?
• Lobbyists?
• Committees?
• Boards?
• Legislators?
32. Committees
• “To get something done a committee
should consist of no more than three
people, two of whom are absent”
Robert Copeland
A camel was a horse designed by a
committee
33. Boards
• Boards tend to maintain the status quo rather
than strive to be the best they can be.
• Its easier to keep doing the same things the
same way rather than risk doing something new
and differently.
• Boards do not welcome differing points of view
• Boards are pre-occupied with process
• Boards and Lead staff don’t work well together.
34. Legislators
“For eighteen hundred years, though perchance I have no
right to say it, the New Testament has been written; yet
where is the legislator who has wisdom and practical
talent enough to avail himself of the light which it sheds
on the science of legislation?”
Henry David Thoreau
Bottom Line: Loyalty to the blood that drives the system
and focus on reelection. Exceptions are rare, few, and
far between.
35. You are the Captain of your own
destiny – Make your own closing
argument
37. “You can get much farther with a kind word
and a gun than you can with a kind word
alone”
AL CAPONE
38. POSITIVE LEGISLATION
• Putting the aggressors on defense
• Introducing more pro-friendly plaintiff
legislation
• Turning legislative bills on their head
(Strike/Insert Tactic)
• Who is really making the money?
39. COALITION BUILDING
• The enemy of my enemy is my friend
• Insurance Corporation as the Dark Sith
Lord
• Joint Ventures
41. TAKING THE FIGHT TO THE
PEOPLE
• Accentuating the positive
• Jury Trials
• Infomercials
• Client Newsletters
• Mass mailings
42. HAVE YOU HUGGED YOUR
LEGISLATOR TODAY?
• Constituent focused
• Relationship building
• No reason at all vs.
• Just when you need something
• Hire them as a law clerk
72. “The essential principals of our
government . . . . . . should we
wander from them in moments of
error or of alarm, let us hasten to
retrace our steps and to regain
the road which alone leads to
peace, liberty and safety."
President Thomas Jefferson --1st
Inaugural Address, 1801.
73.
74. Let us not forget
Franklin Pierce
Franklin Roosevelt
80. The humblest citizen in all the
land,when clad in the armor of a
righteous cause, is stronger than all
the hosts of error. I come to you in
defense of a cause as holy as the
cause of liberty - the cause of
humanity.
William Jennings Bryan
86. “We make movies about Malcolm
X, we get a holiday to honor Dr.
Martin Luther King, but every day
we live with the legacy of Justice
Thurgood Marshall”
88. “My mother first took me to watch
Matthew Perry as an NAACP
attorney in a Sumter courtroom
when I was a young boy to show
me what I could be when I grew
up.”
Congressman Jim Clyburn
98. Defended Aaron Burr –treason
Defended Slaves
Was negotiating the release of
Prisoners when captured
99.
100. Oh, say can you see, by dawn’s
early light, what so proudly we
hailed at the twilight’s last
gleaming…
O say, does that Star-Spangled
Banner yet wave o’er the land of
the free and the home of the
brave?
103. “It is not the critic who counts, not the man who
points out how the strong man stumbled, or where
the doer of deeds could have done them better.
The credit belongs to the man who is actually in
the arena; whose face is marred by dust and
sweat and blood; who strives valiantly; who errs
and comes short again and again; who knows the
great enthusiasms, the great devotions, and
spends himself in a worthy cause; who, at the
best, knows in the end the triumph of high
achievement; and who, at worst, if he fails, at least
fails while daring greatly, so that his place shall
never be with those cold and timid souls who know
neither victory nor defeat.”
~ Teddy Roosevelt
