Trial Magazine

AJ’s advocacy team fights in Congress, the executive branch agencies, and judicial committees to protect civil justice and the Seventh Amendment right to a jury trial. We do a lot with comparatively little: Lobbying disclosure reports filed through the first quarter of 2018 show that AAJ has spent a fraction of what the U.S. Chamber of Commerce and its tort “reform” arm, the Institute for Legal Reform, have spent on lobbying during the same period. We are always outspent, but we are never outworked.

The Bullpen

At least with the Chamber of Commerce, we know exactly how to play the game. Their quarterly lobbying disclosure reports provide a wealth of information about what is warming up in the bullpen that we will be hit with next.

For close to a year, the Chamber has disclosed it was lobbying on litigation funding issues. In May, Senators Chuck Grassley (R-Iowa), Thom Tillis (R-N.C.), and John Cornyn (R-Texas) introduced the “Litigation Funding Transparency Act” (S. 2815), which would mandate disclosure of any litigation funding in all multidistrict litigation and class actions.

Disclosure of plaintiffs’ available resources to an adverse party puts ­plaintiffs at a disadvantage—it invites corporate defendants to calculate the amount of resources needed to ­out-litigate plaintiffs, dragging out cases and eventually pressuring acceptance of unreasonable settlement offers.

The Minor League

AAJ also looks at what anti-civil-justice think tanks and other “educational” institutions are discussing to learn what will be pushed next on the Hill. (Educational institutions are exempt from lobbying disclosure rules.) One consistent source is the Congressional Civil Justice Academy, which is part of the Law & Economics Center at George Mason University’s law school and sponsors a monthly program on civil justice issues for Hill staff. Frequently, the academy will feature a discussion about tort reform legislation about a month before the House Judiciary Committee approves the bill.

While the academy promotes itself as balanced, it frequently is not. Panels often feature two speakers in favor of tort reform and one against it. Program titles are often misleading, tending to promote an anti-civil-justice ideology.

For example, when a bill making it harder for people with disabilities to bring claims under the Americans with Disablities Act was before the House Judiciary Committee, the academy sponsored the misleadingly titled program “Americans with Disablities Act Lawsuits: ‘Drive-By’ Litigation or a Tool to Help the Disabled?”

The Homestretch

As we head into the homestretch of the 115th Congress, AAJ is tracking more than 900 bills that affect your practices. We are focused primarily on keeping small tort reform provisions out of bigger bills that are considered ­must-pass legislation before November’s midterm elections. Examples include

• a trucking provision eliminating negligent hiring claims in the Senate Federal Aviation Administration reauthorization bill
• policy riders attached to many appropriations bills, such as riders eliminating state meal and rest break claims for truck drivers, making it more difficult for workers on cruise lines to bring claims for unpaid wages or overtime, and eliminating cy pres for cases involving the U.S. Department of Justice
• bills and amendments that preempt state law, including efforts to federally regulate cosmetics and ­driverless cars.

We still have a few months left, but with your help, we can elect a better Congress and spend more time in 2019 promoting and enhancing civil justice.

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.