It’s Time for ATRA to Cease Its Baseless Attack on West Virginia: Discredited “Study” Lies About State, Damages National Reputation

I love the holidays. The holidays mean good times with family and friends, fun parties, great food, presents, plays and cantatas, The Nutcracker and working with local charities to ensure that every family has a good holiday.

For West Virginia, the holiday season means something else—it’s once again time for our state to be attacked unfairly, for our economic development efforts hampered and to be called a “hellhole” in the media. It comes from a front group called the American Tort Reform Association. ATRA “members are largely Fortune 500 companies with a direct financial stake in restricting lawsuits.” (Center for Justice and Democracy). Those CEOs have probably never even set foot in West Virginia. What’s worse is that the attack comes in ATRA’s so-called “Judicial Hellhole” report, which has been widely discredited by the media and others.

Just how invalid is this wannabe “study?” Even its authors admit that it’s garbage! In 2007, the New York Times reported that “the question is whether the report’s arguments make sense, are supported by evidence and are applied evenhandedly. Here the report falls short . . . It has no apparent methodology.” In response, ATRA admitted that “we have never claimed to be an empirical study.” (New York Times, December 24, 2007)

So what’s the point? It’s part of a PR campaign to scare our lawmakers into passing laws that limit your 7th Amendment rights and access to the civil justice system. In her article “Judicial Hellholes, Lawsuit Climates and Bad Social Science,” Southern Methodist University Dedman School of Law Professor Elizabeth Thornburg writes:

“The explicit goal [of the Hellhole Report] is to appeal to the public as voters, to scare state politicians into making pro-defendant changes in the law in order to make the label go away, and to get rid of judges whose rulings made ATRA members unhappy. Judicial Hellholes are selected in whatever way suits ATRA’s political goals. The choice is not based on research into the actual conditions in the courts.” (West Virginia Law Review, Vol. 110 No. 3)

Rather than reading this bogus analysis of West Virginia’s legal system, let’s examine the real facts about our court system.

Despite claims made by ATRA and its allies, other corporate front groups like Citizens Against Lawsuit Abuse and the Institute for Legal Reform, there is no civil litigation explosion in our state. In fact, just the opposite is true. According to independent data from the National Center for State Courts’ Court Statistics Project, West Virginia ranks 40th among all 50 states and Washington D. C. in the number of lawsuits filed per capita.

How can we be a “judicial hellhole” when our filings are in the bottom 20 percent?

ATRA and its funders are also demanding that West Virginia waste more than $5 million in taxpayer dollars to establish an intermediate court of appeals. Why would we throw away that much money when our appeals are at the lowest level in 25 years? In 1999, there were 3,569 appeals filed. In 2012, that total was down to just 1,524 cases, a decline of more than 50 percent. According to the National Center for State Courts, our decrease is more than three times higher than the national average. (Supreme Court of Appeals of West Virginia: 2012 Statistical Report.)

How can we be a “judicial hellhole” when our appeals are declining three times faster than other states?

What is more troubling is that ATRA distributes its counterfeit study to media, lawmakers and corporate executives throughout the country. It claims that we’re a “judicial hellhole” and a bad place to do business. Again, the facts paint a very different picture.

First, when the National Federation of Independent Business surveyed its members in 2012, the “cost and frequency of lawsuits” ranked 71st out of 75 problems identified by business owners. It never appeared as a problem on the survey prior to 2004, and it’s never ranked higher than 64th.

In contrast, five of the top ten problems involve taxes. Here West Virginia succeeds. According to the West Virginia Development Office, we have reduced our business tax burden by more than $450 million over the last six years. The overall cost of doing business here is 14 percent below the national average—Moody’s reports that it’s the fourth best rate in the country.

The WVDO also reports that since 2005, more than $20 billion worth of new business investments have been made in West Virginia, including more than $6.2 billion just since 2010. That trend is continuing since just last month, the Philadelphia branch of the Federal Reserve identified West Virginia as one of only a handful of states experiencing the highest rate of economic growth—an economic “boom.”

That sounds like heaven, not a “hellhole.”

Despite ATRA’s best efforts to damage our national reputation, we’re still succeeding. My concern is how many jobs has West Virginia lost because decision makers have believed that this thing is legitimate? How much taxpayer money does our West Virginia Development Office have to spend to counter this misinformation about our state and its business climate?

It needs to stop NOW. West Virginians should stand together and tell ATRA to take its Judicial Hellhole report and go to . . . .