The U.S. Chamber of Commerce’s Institute for Legal Reform has released a 158-page report called “The New Lawsuit Ecosystem: Trends, Targets and Players” (which I learned about through a piece at The Recorder giving a detailed summary of the report). The Institute succinctly describes the report this way:
This report examines the developing “ecosystem” of the plaintiffs’ bar, including litigation trends, key lawyers and target industries. The report also looks beyond litigation to examine how the plaintiffs’ bar is attempting to influence public policy and implement a liability-expanding agenda. In addition, the report explores the growing alliance between the plaintiffs’ bar and some state attorneys general.
What’s all that got to do with appreciation for the appellate courts? Well, it seems to me from my skim of the report that the Institute, at least implicitly, is praising the appellate courts whenever they serve as a brake on what the Institute sees as an out-of-control plaintiffs’ bar. The report notes, for instance, where appellate courts knocked down class action settlements that, in the eyes of of the Institute and the appellate courts, enriched the attorneys way too much in light of the small benefits to their respective classes. It also notes that only five of 15,000 welding fumes cases resulted in judgments for plaintiffs, and that the appellate courts knocked down three of those five. I’m convinced that “Take that, plaintiffs’ bar!” was included in an earlier draft of the report but was edited out by cooler heads.
Not that the Institute is without its gripes. It notes that some appellate courts have approved other attorney-enriching class settlements, and when it writes in a heading that “Washing Machine Cases Suggest Lower Courts Aren’t Hearing What The Supreme Court Is Saying,” it is not just talking about trial courts. The referenced “lower courts” include two federal circuit courts that the Institute apparently feels were too lax in upholding class certification.
Overall, its seems that the institute views the appellate courts as a mixed bag, but at least sees business interests as having a fighting chance there of stopping trends that the Institute finds worrisome. On the other hand, the report’s negative tone toward the plaintiffs’ bar makes everyone else mentioned in the report look good.