Rick Heath

August 9, 2011

Heath is executive director of a watchdog group, Citizens Against Lawsuit Abuse, which counts some 30,000 members across the state with every county represented.

"Our business laws, our legal climate, is really a deterrent to jobs," he said. "Once again one of the keys cited was the state's legal and regulatory framework, whether it is people here creating jobs or people looking to come here and create jobs.

"We did well in other factors. We've got a low cost of labor, but it's quality labor. We've got a low cost of living."

Heath reported that nearly half the states have passed significant legal reforms this year. "States are doing lots of things to try to attract business, and they're not just doing it in little baby steps. They're plunging right in and saying you need to bring jobs here," he said.

"Texas is in the forefront on this," said Heath. "They're creating more jobs than anybody in the nation. They had a huge bill that was passed earlier this year that looks to deter frivolous lawsuits by increasing penalties for filing.

"Pennsylvania passed a 'fair share' act which basically says unless you're more than 60 percent liable in an accident that you can't be held liable and forced to pay damages that somebody else caused.

"In West Virginia, if you're found to be 31 percent liable in a claim, you can be responsible for 100 percent of the damages."

Heath spoke at length on the appellate court debate in the state. "That's been a hot topic, and I think it will continue to be discussed. Job providers look at West Virginia and they see our appeals system, and they compare it to all the other states, and we're different. They want a clear appellate process where they're guaranteed the right of appeal."

A commission on judicial reform chaired by former US Supreme Court Justice Sandra Day O'Connor, recommended an intermediate appellate court for the state, but there was opposition in the Legislature and by the Supreme Court.

A bill failed in the Legislature "because the House leadership is opposed to it, and House leadership are members of the personal injury bar. Another level of review is another opportunity to have a case overturned."

Last year, said Heath, a reform bill cleared the Senate, but was never debated in the House. "It was never put on the agenda of the Judiciary Committee.

"Today's [Supreme] Court [of Appeals] would garner a decent amount of respect from anybody looking at the Court overall, but the argument from the Supreme Court is that they think they can handle the problem.

"The Supreme Court revised their rules. Now the process has been streamlined somewhat where you file a 'petition of appeal' and in every case they will issue an opinion of some sort."

But these "memorandum decisions" do not set precedent. "While that technically does give everyone an appeal, the debate is on the meaningfulness of the appeal.

"What the Court has done has drastically increased their workload, and they are already, according to the panel and their own admission, one of the busiest appellate courts in the nation.

"If you look at this past session, they wrote more than 200 opinions which is more than what they have typically done in a term.

"So I think they are going to be handling more and more cases with these 'brief' decisions and handling less and less cases with precedential value. And that's opposite to what West Virginia needs, because the whole point of the appeals court was to help develop our law and create more precedent and get more predictability in what the law is by having opinions that can be cited."

The trial bar said an intermediate court of appeals would cost too much. "The cost estimate put it at $8 million a year -- a quarter of one percent of the whole state budget.

"This year the same people that were arguing against costs were pushing for a pay raise for all the judges. They passed that. They passed about $8 million in pay raises for all the judges who are already making more than $100,000 a year. But they couldn't afford to pass the appeals court bill.

"Chesapeake pulled their regional headquarters because of a lack of appeal. That was $25 million right there. That was three years of the cost of an appeals court right there.".

The issue of '"venue" also needs to be addressed, according to the CALA director. Under the present rules, a comany doing business in West Virginia can be sued in state courts, even if the cause of action originated elsewhere. Lawyers like to file in West Virginia, because they believe they have better chances of winning.

And there is less chance of reversal on appeal.