Trial Magazine

While saying goodbye to 2017 may not seem like a big deal, it feels huge to AAJ. In January, an ­anti-civil-justice Congress was sworn into office, and President Trump was inaugurated. By the end of the month, the first of several major tort “reform” bills, the “Lawsuit Abuse Reduction Act,” a mandatory Rule 11 sanctions bill, was introduced—and we were off to the races.

How do you eat an elephant? The answer is: one bit at a time. But what does that mean when five major tort reform bills were railroaded through the House Judiciary Committee in February and four of them passed the House by mid-March?

In March, when the House voted during its so-called “Lawsuit Abuse Week,” we barely had time to educate members of Congress about the bills, especially the freshman members. The House Judiciary Committee held no hearings. There was no record and minimal process. We took a deep breath, rolled up our sleeves, and with your tremendous help and support, we started eating that elephant.

You made a difference. Two AAJ Lobby Days made a world of difference. Our Republican Trial Lawyers Caucus made significant inroads by speaking directly to Republican lawmakers about preemption and states’ rights. Our Women Trial Lawyers Caucus held their biggest lobby day ever—twice the usual turnout with many more states represented. AAJ members called and emailed their members of Congress  and engaged their clients to do the same. The bills barely passed the House and went to the Senate with no momentum.

It’s a marathon, not a sprint. The House’s pace for considering tort reform was unsustainable. We are now running a marathon—still moving fast, but at a more manageable pace.

• Right before adjourning for the August recess, H.R. 3784—a bill to eliminate complete diversity and replace it with minimal diversity—was introduced and may be the next major tort reform bill to move through the House Judiciary Committee.  Complete diversity has been a requirement since the U.S. Supreme Court’s 1806 decision in Strawbridge v. Curtiss. The bill would send many more state cases to federal courts, which will not have the resources to manage them efficiently.
• In September, the House passed H.R. 3388, the “SELF DRIVE Act,” on ­driverless cars. AAJ has been working hard in the Senate to preserve state tort remedies in the wake of a sea change on liability.
• The House also passed H.R. 732, the “Stop Settlement Slush Funds Act,” which sets a blanket policy prohibiting donations in all settlements involving the U.S. government. Cy pres often plays an important role in settlements, particularly in cases when harm is generalized and direct resitution unavailable. 

The fall also brought a fresh push for policy riders. As we continue the run to finish the appropriations process to fund the government for 2018, riders will take us to the end of the year.  

2018 will be better. Even in this most unusual political environment, some things are still predictable. First, with the mid-term elections looming, Congress must buckle down and show its constituents that it can legislate. Tort reform is not on the short list. There still may be a lame-duck session following the election, but that would likely focus on priority legislation. It’s easier to run out the clock in a Congress’s second year. Remember, any bill that does not pass dies with the Congress, and the next Congress starts from scratch.

Thank you. We appreciate ­everything that you did this year to slow down the tort reform juggernaut. We can’t do this without your help and support.

Susan Steinman is AAJ's senior director of policy and senior counsel. She can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.