In Their Own Words — Key Quotes on Court Secrecy

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In Their Own Words — Key Quotes on Court Secrecy  

From: “The assault upon the citadel”
James E. Rooks Jr., senior counsel in AAJ’s Research department.
Trial Magazine, Dec. 2007

"The real problem is the abuse of the practices that allow such secrecy, and the fact that even one sealed settlement can keep a product on the market for years after it is discovered to be dangerous—exposing consumers to continued risk and thwarting government regulators’ efforts to protect the public."

"In 2001 and 2002 alone, federal courts may have allowed the sealing of settlement documents in as many as 500 personal injury cases—and their significance for public health and safety will, for the most part, never be known. Even the 500-case estimate is the small tip of a large secrecy iceberg. It refers only to the sub set of personal injury settlements that were both sealed and filed in federal courts, leaving untouched all the cases that were concluded secretly without filing a settlement agreement— likely a far higher number. It also leaves out all the secret settlements instate courts. According to conventional wisdom, state courts handle 95 percent of U.S. litigation, so the number of secret settlements in state courts (whether filed or unfiled) should be proportionately higher than the number in federal courts."

"Defendants sometimes argue that cases won’t reach settlement if they cannot secure secrecy agreements. The argument is meant to frighten judges, to convince them that restricting secrecy would result in fewer settlements, more crowded dockets, more trials, and generally more work for an already-overworked judiciary."

"If repeat-player defendants can conceal settlement information, they can reduce the amount and quality of data used by consumer attorneys to make litigation decisions; facilitate public relations campaigns claiming that their products or operations are safe; characterize suits against them as 'frivolous'; trivialize amounts paid to settle, leaving an impression that they are paying nuisance value; conceal the number of lawsuits against them; conceal the fact that litigation ever occurred; and, sometimes, stave off litigation entirely."

"The result—and, one suspects, the ultimate goal—of the liberal use of secrecy can be to deprive Americans of an effective tort system, allow defendants to conduct “business as usual,” and reduce all matters of injury-prevention and compensation to mere business calculations. If that can be done, the only remaining step will be to buy the insurance that will cover the costs."


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