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Hell Is What You Make of It

Hellholes Let us hope that when an advocacy organization such as the American Tort Reform Association releases its ranking of the worst Judicial Hellholes, most lawyers, trained as they are in critical thinking, would at least question its objectivity and factual basis. As I wrote here when last year's report came out, one man's hell can be another man's heaven. But some commentators pounce on the report as evidence of justice run amok, as did the editorial page editors of The Examiner, who cited the report to conclude: "Every day, defendants are forced to defend themselves from frivolous lawsuits that clog our judicial system and often leave them financially ruined -- even if they prevail in court or never even go to court."

Thus it was a Christmas Eve gift to read Adam Liptak's insightful deconstruction of the ATRA report in The New York Times. Liptak considers the report from the vantage point of whether its arguments make sense, are supported by evidence and are applied evenhandedly. In these respects, he concludes, "the report often falls short." Among the points he makes:

  • The report is a collection of anecdotes based largely on news stories, with no apparent methodology.
  • The report makes incomplete points, such as when it condemns judicial campaign contributions by plaintiffs' lawyers without mentioning contributions from business groups.

An ATRA spokesman responds to Liptak: "We have never claimed to be an empirical study. It's not a batting average or a slugging percentage. It's no more or less subjective than what appears in The New York Times." That stomach punch to the NYT made for a cute quip, says Mark Obbie at the blog LawBeat,  but it does not take away from the import of the comment:

'Never claimed to be an empirical study' is the equivalent of the old media standby, the 'unscientific survey.' Translated: 'We made this up. The rankings, comparisons, numerical trappings -- all meaningless.' Good to know!

While Liptak may be the most visible critic of the report, others expressed skepticism of their own. In its Dec. 18 story on the ATRA report, The National Law Journal noted that the report "is based on anecdotal evidence" and that ATRA "does not provide a methodology used to reach results." The American Association of Justice predictably called it a slick piece of propaganda. And the blog TortDeform mocked it with a fawning "fanmail" thanking ATRA for drawing attention "to the many injustices corporations have to face day in and day out."

Last year, I closed my post on the Judicial Hellholes report with the words of Harry S. Truman. They ring true still, so I repeat them here: "I never give them hell. I just tell the truth, and they think it's hell."

Posted by Robert J. Ambrogi on December 27, 2007 at 03:08 PM | Permalink | Comments (0)


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