Tort Reform

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Another one of those rightwing priorities:

• Limit damages
  
• Get friendly judges elected in state supreme courts
  
• Sign away your rights through mandatory arbitration.
  

It's all exposed in the documentary Hot Coffee by Susan Saladoff, herself a lawyer for 25 years. 

Expose so called frivolous lawsuits. The poster child of that was an octogenarian spilling hot McDonalds coffee over her lap. But McDonalds keeps the coffee so hot that the burns are really severe, and this became a cause celebre for those seeking tort reform.

Limit the damages, so a disabled baby through medical negligence who can never support himself and needs 24 hour care, ongoing operations, therapy, etc. isn't provided with enough money to finance that care. 

Judges on local supreme courts not deemed friendly enough to business face slick and often very distorted campaigns financed with endless money from lobby groups like the Chamber of Commerce which they can't possibly match. Even in the unlikely event they will, they get sued, to get them of the courts even temporary and their reputations sullied for the next reelection. All started by George Bush and Karl Rove in Texas. 

Sign of your rights, like a 19 year old female employee of Haliburton did (unwittingly). She got send to Irak, was promised female housing but got nothing of the sort. Instead, she was assaulted and gang raped by male employees, colleagues. When denouncing them she was put under guard in a container. She had to phone her dad, who phoned a Congressman to get her out. 

But, her employee contract contained fine print, which signs away her rights to use the courts, sending her to mandatory arbitration. Her employer gets to chose which arbitrators, and these want repeat business so they almost never rule against the hand that feeds them, and the process is extremely secretive. What's wrong with our courts in the first place? Consumers and employees (at least a third of the workforce) have increasingly signed away their rights, even without knowing. 

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You really should read the whole article, at The American Prospect

Roberts Rules for Protecting Corporations

The chief justice’s changes to the rules for litigation make suing big business a whole lot harder.
Moshe Z. Marvit
November 14, 2016

This article appears in the Fall 2016 issue of The American Prospect magazine. Subscribe here. 

On April 9, 2012, Sandra Robertson was fired from her job at a Fayette County, Pennsylvania, plant run by Hunter Panels, which manufactures insulation materials. Robertson had worked at Hunter Panels for six years, following a much-decorated 20-year career in the Air Force, and was quickly promoted from traffic clerk to become the only female supervisor at the plant. Despite the fact that she did the same work and had more experience than most of her male counterparts, she earned approximately 20 percent less than they did. Furthermore, male supervisors subjected her to all manner of sexual harassment, from making obscene gestures to referring to her as a “bitch” who was “losing her mind” and “throwing fits.” When she complained about this treatment, she was told to “work harder” at getting along with her harassers.

Upper management at Hunter Panels treated Robertson differently from male supervisors—not providing her resources she needed and even telling her subordinates that they could ignore her. The human resources manager at the plant made it clear that he disliked her, and when she asked him about his mistreatment of her, he ordered her to undergo anger management therapy.

Robertson took the hint and stopped reporting the harassment. However, a few months later, after she had received highly favorable performance evaluations, a group of male supervisors locked her out of the production office and laughed when they saw her approaching. She complained and was told that she should consider “exiting the organization.” She tried again to bring attention to the harassment that she and other female workers were experiencing, which included being given graphic descriptions of their coworkers’ penises. As a result of her complaints, Hunter Panels fired her, telling her it was due to her “management style.”

Robertson filed a lawsuit in federal court alleging that her employer violated her civil rights by treating her as it did and for firing her when she spoke up. At the trial, Hunter Panels denied many of Robertson’s allegations and argued that Robertson was fired for her “unprofessional behavior” and inability to work with her co-workers. As proof, Hunter Panels presented documents that were dated and placed in her file before Robertson’s complaints to show that she was a problem employee. Unfortunately for the company, Robertson’s attorneys had demanded electronic versions of much of that material in its original form. They had computer experts analyze the documents, and found that the metadata proved the documents had been created after Robertson’s complaints, and then altered to appear as if they were created prior to her complaints.

On April 20, 2015, a federal jury found that Hunter Panels had violated Robertson’s civil rights. They awarded her close to $1 million in compensatory damages, and $12.5 million in punitive damages—the largest award of its kind in the history of the Western District of Pennsylvania—to send a message to the company that its conduct would not be tolerated.

Robertson and her attorneys were only able to get those documents, and attendant metadata, because of their right to request broad discovery. Her attorney, John Stember, explained that Sandra Robertson’s case “was not a $13 million case when it walked in the door.” It was not until they engaged in significant discovery that they realized the magnitude of the case, because in employment discrimination and other civil-rights cases there is almost always an “information asymmetry” between the plaintiff and the defendant. To balance this asymmetry, the federal courts have, for the better part of a century, allowed a party to get any relevant non-privileged legal discovery.

Though it’s strange to think in these terms, Sandra Robertson was lucky that her employer discriminated and retaliated against her when it did, and not now.
 
“Procedure is power, of course, so the stakes of choosing one over the other produces different winners and losers.”
NINE DAYS AFTER SANDRA Robertson’s verdict was handed down, Chief Justice John Roberts sent Congress a package of changes to the Federal Rules of Civil Procedure, the most important of which concerned discovery.