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December 1, 2016

Election Results Prove Promising for Legal Reform Across America

As the fog of the recent election clears and the new administration, new Congress and new state legislatures focus on the business of governing, the future of legal reform has begun to come into clearer focus.

First, policymakers at every level should take heed of ILR’s Election Night survey, which found strong support amongst voters for lawsuit reform. Specifically, more than three-quarters (76 percent) of voters overall – and 84 percent of Trump voters – said that Congress passing laws that allow trial lawyers to bring more lawsuits would have a negative impact on the economy. Further, a strong majority (66 percent) of voters believe that lawyers are the main beneficiary of the current lawsuit system.

While those results reflect views on Congress, it’s safe to assume it applies to state elected officials as well.

So, what does the next two years look like for the future of lawsuit reform policy?

At the federal level, Republican control of the White House and both houses of Congress may spell trouble for the plaintiffs’ bar. This could mean stopping of their efforts to ban arbitration through the regulatory process and advancement of some long-awaited legal reform bills in Congress.

At the state level, however, there is even more certainty about what the playing field looks like for 2016 and beyond:

Missouri 

Outgoing Governor Jay Nixon (D) this year vetoed two key legal reform bills passed by the state legislature: A bill to adopt the Daubert Standard for expert evidence and a bill to reform the state’s collateral source rule. Governor-elect Eric Greitens (R), who defeated Missouri Attorney General Chris Koster on Election Day, is pro-legal reform and has signaled his support for both measures.

Missouri House Speaker Todd Richardson (R) sees an opening for passage of both bills, recently telling a Missouri Chamber of Commerce gathering that these issues are among his legislative priorities for the upcoming legislative session.

The plaintiffs’ bar also suffered a defeat in the state attorney general’s race, with Josh Hawley (R), a law professor and former clerk for U.S. Supreme Court Chief Justice John Roberts, scoring an important victory over a plaintiffs’ bar-backed candidate.

This is a bright legal reform outlook for a state which fell from #37 to #42 in ILR’s latest Lawsuit Climate Survey rankings.

West Virginia

The pro-legal reform Republican majority (which passed a historic package of legal reforms last year) experienced a number of wins on Election Day, expanding its majority.

Pro-legal reform incumbent Attorney General Patrick Morrissey (R) won re-election over plaintiffs’ bar-supported candidate Doug Reynolds (D).

In addition, Governor-elect Jim Justice (D) knows firsthand what it is like to be sued in some of West Virginia’s worst court systems and could be a strong partner for common sense legal reforms.

These are important victories for the Mountaineer State, which has taken great steps the past few years to improve its reputation as having one of the worst legal climates in America.

Illinois 

Longtime Illinois House Speaker Michael Madigan saw his iron grip over state government weaken slightly —enough to lose his supermajority control of the legislature. This provides greater leverage to Governor Bruce Rauner (R), who is engaged in a multi-year budget impasse with Madigan over Rauner’s “Turnaround Agenda.” Lawsuit reform, specifically reform to the state’s weak venue laws, is a key plank in Rauner’s agenda.

Circuit Judge John Baricevic controversially chose to resign his seat to run for re-election, rather than stand for retention (since re-election only takes a simple majority to win, while retention requires a 60% “yes” vote) in Madison County, which is consistently ranked one of the least fair and reasonable court jurisdictions in America. On Election Day, Baricevic, who was supported by the plaintiffs’ bar, lost his seat.

In Illinois’ Fifth Appellate District (which includes Madison County), two Republican judges, Judge John Barberis and Judge Randy Moore won election despite a barrage of attack ads by a political action committee called Fair Courts Now, which received $1,077,500 from mostly asbestos plaintiffs’ firms.

These are all rays of hope for a state which increasingly has come be to known as the “Land of Lawsuits.”

Whether or not legal reform becomes a reality in these states will, of course, depend on the hard work of legislating.  But for now, the election results are a heartening sign that lawsuit reform could be on the march across the country.

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