ST. LOUIS – An attorney for the Competitive Enterprise Institute said the significant rise in statewide lawsuits is because of the close connection between lawyers and judges.
Devin Watkins recently told the St. Louis Record that based on a recent Manhattan Institute Trial Lawyers Inc. report, Missouri has become the “Sue Me State” because specifically selected judges tend to be friendlier to rules that encourage litigation.
The report, authored by James Copland and subtitled "Update: Missouri," cites St. Louis as the worst “judicial hellhole” in the country by the American Tort Reform Foundation. “Unfortunately for Missouri, 85 percent of the corporate executives surveyed in the Harris poll said that a state’s litigation climate is likely to impact their company’s decisions about where to locate or expand.”
A judge's time on the bench tends to be responsive to an average of the opinions of the people over a 30- to 40-year time frame, Watkins said, adding judges who are selected "are those people who support the values of those who selected them."
Devin Watkins Competitive Enterprise Institute website photo
He added there are currently seven members on Missouri's Appellate Judicial Commission – three selected by the governor, three selected by the state bar and one by the chief justice. They are responsible for choosing Supreme Court and Court of Appeals judges.
“Instead of the state bar and the chief justice, imagine two (commission members) selected by the Missouri House of Representatives and two selected by the Missouri Senate, retaining the three selected by the governor,” Watkins added.
Because of the heavy influence lawyers have on judicial selection, "the result is that Missouri’s common law rules, set by judges, are much friendlier to plaintiff’s attorneys, who often make their money based on how much they can win in litigation,” according to Watkins.
The current state plan does allow for retention elections, but retention elections are not very likely to remove a sitting judge in any state where they exist, he said.
"Even a minor change could have a substantial impact,” Watkins added.
The uphill battle for tort reform will affect the litigation landscape, Watkins said.
"The common law rules are set by judges if the legislature hasn’t selected any rules yet, but legislation can change those rules,” Watkins said, adding it is still the judges who will interpret the rules set by the legislature, potentially even ruling them unconstitutional.
“Legislation can improve the situation, but there is usually a large amount of discretion in any rule that could be set,” he said, adding discretion means it is more important who the judges are rather than what the rule is. “Still, improvements can be made by legislation.”
He said something may have changed since the January publication of the 2018 Manhattan Institute report, which according to Watkins “focuses on the efforts by then-Gov. Eric Greitens, who had advocated for reform of this process.”
“I have not yet seen if the new governor, Mike Parson, will be supporting similar efforts, or if the legislature will be focusing on this without the encouragement of the governor,” Watkins said.