The radio ad paid for by the U.S. Chamber Institute for Legal Reform began with the honking of horns and a commentator who said, “Rhode Island is heading in the wrong direction.”
The ad referred to the results of a national Harris Poll that ranked Rhode Island No. 35 among the 50 states, down from No. 26 last year, for the perceived fairness of its legal system toward businesses. Yet the Rhode Island Bar Association has questioned the poll’s validity.
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Given the stigma attached to being known as a state with anti-business courts and runaway juries, who’s wrong and who’s right is no small matter.
The 2007 State Liability Systems Ranking Study was based on a survey mostly of in-house general counsel at corporations, along with some senior corporate litigators, said Larry Akey, spokesman for the institute, which is affiliated with the U.S. Chamber of Commerce.
Lawyers were asked to rank key elements of a state’s legal system, such as treatment of tort and contract litigation, timeliness of summary judgment or dismissal, punitive damages, discovery, non-economic damages, judges’ impartiality, judges’ competence and juries’ predictability and fairness.
The results surprised some civil litigators in the state.
For example, Rhode Island’s 75 survey respondents ranked the state 41 out of 50 states for timeliness of summary judgment or dismissal, according to the Harris Poll.
But Jeffrey Gladstone, a partner at Partridge Snow & Hahn and co-chair of the firm’s litigation department, said in his experience trying cases in Rhode Island and Massachusetts courts, the Ocean State’s courts are more prompt in resolving business matters.
It is easier to get an opportunity to make oral arguments before a judge, he said, which can help expedite a dismissal. And there’s no backlog on the Superior Court’s business calendar, he said. “In Massachusetts there are procedural requirements that impede the speed in which cases are heard.”
But the calendar doesn’t include matters such as personal injury cases against businesses, said R. Kelly Sheridan, a civil litigator at Roberts Carroll Feldstein & Peirce Inc.
Survey respondents also ranked Rhode Island No. 37 states for the extent of non-economic damages and No. 28 for punitive damages, which Sheridan said he can understand because the state requires pre-judgment interest to be paid at a rate of 12 percent per year.
Sheridan said the interest rate is “so high that it’s punitive.” And the interest starts accruing from the day a plaintiff claims injury, as opposed to the day the claim is filed. Other states don’t start accruing interest until the claim is filed.
Sheridan said he wasn’t surprised by the results of the study.
“The courts have a liberal statute of limitations,” he said. “In Rhode Island it’s three years from the day you knew you had a cause of action … many states have a strict one-year or two-year statue of limitations.”
Because a person can sue within three years of an incident, it makes the tail of liability longer, and therefore more costly, he said.
Thomas Lyons, president of the Rhode Island Bar Association and a partner at Strauss Factor Laing & Lyons, said last year’s lead paint verdict could have also influenced Rhode Island’s poor ranking this year.
But Lyons said the poll results lack merit because of the small sample size. And many of the respondents may not have been very familiar with the Rhode Island court system, he said, because the poll mostly surveyed in-house legal counsel. In Rhode Island, in-house legal counsel do not have to pass the bar exam, but without doing so, they cannot try cases.
About 55 in-house attorneys are members of the Bar Association, Lyons said.
Akey said the pollsters asked respondents “to comment only on the states they have familiarity with.” He added: “We feel the sample sizes for a state like Rhode Island still yields statistically valid information.”
Jeffrey Padwa, president of the Rhode Island Trial Lawyers Association and principal of Padwa Law, objected to the poll for other reasons. The survey respondents are a biased population, he said, because “you’re asking them to evaluate the system that holds them accountable.”
Padwa called the poll a “self-serving marketing gimmick” that has “no credibility whatsoever.”
Superior Court Presiding Justice Joseph F. Rodgers Jr. said he can see why the U.S. Chamber “is not happy about the little person receiving damages from the corporate entities that are considered negligent.” But that doesn’t bother him.
“Being criticized by the Chamber is a feather in our cap,” he said. “The Chamber doesn’t represent the little guy, not at all. [Its] only concern is profits.”
And the judiciary system has made special provisions for businesses, such as creating the business calendar and giving priority to those cases, Rodgers noted. “I think the Rhode Island judiciary has recognized the importance of having a healthy business climate,” he said.
Gladstone said his clients generally understand there is a lot of time and money involved in litigation.
“We let them know, from a procedural point of view, a time table, because our system is predictable,” he said. “There aren’t any surprises. That’s really all you can expect or want out of a system.”
