The Impact Judicial Hellholes Have on Litigation

CSI - Courtroom Sciences Inc.

Commonly, Judicial Hellholes® have been defined as areas in which laws and procedures tend to be applied in an unfair and unbalanced manner. Typically, this phenomenon tends to be to the disadvantage of defendants. The jurisdictions that are susceptible to becoming Judicial Hellholes have a set of common characteristics, such as state laws and standards that are both more plaintiff-friendly and offer more generous damages recovery possibilities.

Understanding that defense attorneys will most likely be unable to change their venue, recognizing that they are in a Judicial Hellhole is still significant for developing strategy. Being proactive and prepared is the crux of getting the best possible outcomes.  

What is a Judicial Hellhole?

Law Business Research defines a Judicial Hellhole as “a jurisdiction where judges in civil cases systematically apply laws and procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants.”

The Identification of Judicial Hellholes

Identifying Judicial Hellholes involves assessing the continuity of jurisprudence across various jurisdictions. Each year, since its inception in 2002, the American Tort Reform Foundation releases an annual report identifying jurisdictions that it deems have earned reputations as Judicial Hellholes. Some jurisdictions are “known for allowing innovative lawsuits to proceed or welcoming litigation tourism.” 

Georgia, California, New York, Pennsylvania, Illinois, Louisiana, Missouri, and South Carolina are frequently among the leading states where defense lawyers will find Judicial Hellholes. Due to the propensity of finding a judicial hellhole in one of these places, it becomes increasingly important to understand the common denominators that link these areas, such as anchoring and changing jury demographics. 

The High Impact Judicial Hellholes Have On Overall Litigation

Plaintiff attorneys have become experts at taking relatively benign cases and manipulating them into devastating outcomes and expensive nuclear verdicts and settlements. These high damage awards, which appear to be resolved based on their perceptual value at the jury level rather than their actual economic worth, appear to be increasing at an alarming rate. Class action lawsuits set new records in 2022 for the amount of settlements. 

Anchoring, in particular, has been identified as a factor in a jurisdiction being identified as a Judicial Hellhole and in driving excessive civil damages awards. There is no dispute that anchoring is a very effective tactic, and based on its well-documented effectiveness, plaintiff attorneys have become more assertive in requesting astronomical sums of money from juries. The potential financial strain of these nuclear settlements and verdicts underscores the importance of developing effective strategies to manage such scenarios.

Developing Successful Litigation Strategies: Being Proactive and Prepared

Being prepared can start with an assessment of an organization's materials. Often, a company’s communications, such as mission statements, websites, training manuals, and handbooks, can create potential litigation issues. Far too often, these documents default to stating that safety is the top priority for an organization. While this may seem an innocuous public statement, this unnecessarily blanket claim is generally untrue and carries potential legal ramifications. 

Should an injury occur inside this business, savvy plaintiff attorneys will use any marketing materials, safety handbooks, or other corporate documents that include messages like “safety is our top priority” to demonstrate that the company violated its safety policies. From there, it becomes highly likely that the jurors will find the company liable for the plaintiff’s injuries. These materials should be periodically reviewed to avoid significant litigation problems. 

Another key to developing successful litigation strategies is being proactive, particularly if a defense attorney finds themselves in a Judicial Hellhole. Rather than waiting for the plaintiff’s counsel to make the first move, if the defense is more proactive, setting things in motion ahead of time, they can put themselves in a more favorable position. 

However, some clients may be more hesitant than others to spend the money required to take a more proactive approach. They may be hoping to avoid overpaying in a case they think will likely settle. However, not investing in the case early may prevent you from settling the case more favorably and earlier. Open communication with clients and educating them on the consequences of being reactive can be effective tools in explaining the importance of being proactive. As the case progresses, a more proactive mindset can be a powerful tool for avoiding catastrophic nuclear settlements and verdicts

Navigating the impact of Judicial Hellholes on litigation requires a multifaceted approach, such as understanding common denominators, recognizing the dangers of nuclear settlements and verdicts, and being prepared and proactive. At Courtroom Sciences, our litigation research experts can assist in assessing your case and helping to maximize settlement and verdict outcomes with focus groups, mock trials, and jury consulting services. Speak with one of our experts to get started. 

Key Takeaways

●  Defense attorneys must understand the common denominators contributing to a jurisdiction being labeled a Judicial Hellhole.

●  Factors such as anchoring present a significant challenge for defense attorneys.

●  A company’s communications, such as mission statements, websites, training manuals, and handbooks, can create potential litigation issues.

●  Defense attorneys must develop proactive strategies to address and manage nuclear settlements and verdicts.

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