Dead Practice Area: Federal Trials
The number of tort trials in federal courts has fallen by nearly 80 percent in less than two decades, a government study found. If your firm has an active practice in Federal trials, it's time to get out. This area is dead or dying.
Legal experts attribute the drop to Supreme Court rulings in the 1990s that made it much more difficult for people bringing lawsuits in federal courts to prevail. "Plaintiffs have been avoiding federal courts," Aaron Twerski, dean of the Hofstra University school of law, told the Associated Press.
President Bush signed legislation in February to have federal judges take most large class action lawsuits away from state courts. In a nine-minute White House signing ceremony, Bush said a half-dozen times that the legislation was only a beginning in his drive to end "the lawsuit culture."
The number of tort trials concluded in the federal court system in 1985 was 3,600, compared with fewer than 800 in 2003, the government study said. Nine out of 10 tort trials in federal courts involve personal injuries such as product liability, car accidents and medical malpractice cases.
The total number of tort cases concluded in federal courts -- those that went to trial and those that didn't -- hit a high of 60,941 in 1999, with an influx of asbestos and breast implant litigation. The figure declined to 49,166 in 2003.
A major reason for the decline in trials: Rulings like the 1993 Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals which set a very high standard for admitting expert testimony in federal courts, said Twerski.
Testimony from expert witnesses is often the vital link in convincing juries that an anti-nausea drug causes birth defects, that PCBs in industrial brake fluid accelerated a worker's lung cancer or that a defective tire was the reason for a blowout on a minivan that killed several people.
Elaborate pretrial hearings over proposed expert witnesses are driving up the costs of tort cases, Brooklyn law school professor Margaret E. Berger told the Associated Press.
Twerski also said a string of fairly conservative judicial appointments during the administrations of Ronald Reagan and both Bushes "does not look kindly to this cutting-edge-type litigation."
Bush took his campaign for lawsuit reform local early this year, visiting Madison County, Ill., which the American Tort Reform Association dubbed the nation's top "judicial hellhole." The county has a reputation for handing out big awards and allowing lawsuits that would be thrown out in other districts.
More than 1,400 asbestos cases were filed in Madison County over the last two years, and it was home to 179 class action lawsuits during that time. A Madison County judge ordered cigarette maker Philip Morris USA to pay $10.1 billion for falsely marketing light cigarettes as less harmful than other brands.
So it will pay off to promote and market your firm's trial experience in state courts instead.
If your firm has an active practice in Federal trials, it's time to get out. This area is dead or dying.
As your text and your trackbacks indicate, by 'trial practice' you mean tort practice. Commercial litigation in the federal courts isn't going anywhere. Furthermore, there are still many areas of civil law, including most intellectual property matters and a raft of statutory claims, such as ERISA and employment claims, where federal courts are the only game in town -- frequently by statute.