James Gill: 'Plaintiff' a dirty word for LABI

by James Gill

It might be a slight exaggeration to suggest the mission of the Louisiana Association of Business and Industry is to maximize profits for its Champagne-swilling members and grind the faces of the poor.

But when LABI turns its attention to the civil courts, the focus is not on ensuring adequate recompense for the aggrieved. “Plaintiff” is a dirty word.

Fair enough. Business always will be the principal target of lawsuits because that is where the money is, and fraudsters join in with enthusiasm. LABI has just come out with “Fact Sheet: Louisiana’s Judicial climate,” which claims that 60 percent of its members “report that frivolous lawsuits increase the costs of doing business.”

That doesn’t mean much, for those members might merely be expressing an opinion about the effect of litigation in general. Besides, if we are to leave the definition of “frivolous lawsuit” to defendants, there won’t be many that fail to qualify.

According to LABI, Louisiana’s “reputation and reality as a poster child for lawsuit abuse” drains money from the economy and deters business investment. You could be forgiven for not noticing. As the LABI report boasts, “Louisiana’s economy is outperforming the nation in many indicators, including unemployment levels, per capita income growth and a revitalized manufacturing sector, expanding faster than any other state.” Evidently, if it weren’t for those pesky lawsuits, the state would be sinking even faster under the weight of all that money.

The numbers cited by LABI do support the proposition that Louisiana likes to litigate, but so does the rest of America. We are, however, more inclined than most to descend on the courthouse, ranking seventh nationwide on a “tort activity index” and third among 16 Southern states for the number of civil suits filed per capita.

Whether that makes us a “poster child for lawsuit abuse” or proves that the courts are safeguarding the rights of the citizenry is a question on which LABI and trial lawyers will strongly disagree.

LABI’s campaign for judicial reform met with some success at this year’s legislative session, although the courts may yet invalidate the law it pushed to put the kibosh on the flood protection authority lawsuit against oil and gas companies that destroyed huge areas of the coastal wetlands.

LABI failed, however, in its bid for more jury trials in civil court, and now declares its main mission next year will be to try again.

All trials in which the sum in dispute is less than $50,000 are conducted by judges in Louisiana. Over that amount, either party can opt for a jury.

That gives Louisiana far and away the highest threshold in the entire country, and in 36 states; the option for a jury trial in a civil dispute is open to one and all. Thus, according to LABI, Louisiana not only “limits a citizen’s constitutional right” but is “driving up costs and encouraging frivolous cases.”

Sad to relate, LABI has grave doubts about either the integrity or the competence of the Louisiana judiciary. According to the report, the $50,000 threshold “allows entrepreneurial trial lawyers to ‘judge shop’ to legally and openly seek a venue with a track record that is more profitable for them.” So long as we have elected judges, it may be that total impartiality is indeed too much to expect.

Juries, however, would not necessarily prove more sympathetic to LABI members. Plaintiff lawyers tend to rub their hands at the prospect of a jury trial in New Orleans, for instance.

Statewide, only 235 jury trials were held in 2012, although more than 134,000 suits were filed.

LABI professes itself aghast that fewer than 2 percent of cases go to a jury trial in Louisiana and argues that, if the threshold were lowered or abolished, we’d have a whole lot more.

LABI pooh-poohs suggestions that the courts would then be saddled with an “overwhelming workload.” We have more than our fair share of judges, LABI notes, and, besides, “studies have shown that less than 1 percent of civil cases go to jury trials in states with no jury threshold.”

Someone at LABI should have noticed what a huge hole that blows in its entire thesis. Better lay off that Champagne.

James Gill’s email address is jgill@theadvocate.com.