And how to get out of them…especially when you cannot get to federal court.
[W]hat I call the ‘magic jurisdiction,’ […is] where the judiciary is elected with verdict money. The trial lawyers have established relationships with the judges that are elected; they’re State Court judges; they’re popul[ists]. They’ve got large populations of voters who are in on the deal, they’re getting their [piece] in many cases. And so, it’s a political force in their jurisdiction, and it’s almost impossible to get a fair trial if you’re a defendant in some of these places. The plaintiff lawyer walks in there and writes the number on the blackboard, and the first juror meets the last one coming out the door with that amount of money. […] The cases are not won in the courtroom. They’re won on the back roads long before the case goes to trial. Any lawyer fresh out of law school can walk in there and win the case, so it doesn’t matter what the evidence or the law is.Richard “Dickie” Scruggs, “Asbestos for Lunch” Panel Discussion at the Prudential Securities Financial Research and Regulatory Conference (May 9, 2002), in Industry Commentary (Prudential Securities Inc., N.Y., New York) June 11, 2002, at 5.
I. The Problem
There are jurisdictions in virtually every state where it is very difficult, nigh impossible, for a corporate defendant to obtain a fair trial. This difficulty, caused by an apparent and prevalent disdain for corporate America in these locales, can be explained by — but not justified by — sundry factors. For instance, it is an undisputed sad fact that, in many of these cities and counties, the population is poor, uneducated, and underemployed. Jobs and opportunities for improvement are scarce. In atmospheres such as these, an “us against them” mentality makes sense, and protecting your neighbor may be a more attractive avenue than preserving justice.
Another factor impacting the hostile atmosphere toward large defendants can be the immeasurable influence of the few wealthy and successful residents, politicians, and ministers. Local individuals who wield such influence in communities many times have held meetings in churches, union halls, and local fire stations to teach people “how to be good jurors.” Their propagandizing mantra generally is that, as jurors, these Regular Joes finally are empowered to make a difference — either for their peers or to slap the powerful. Or both.
Yet a third factor may be simply a family bond. Because many of these locales attract few outsiders as residents, it is not uncommon for counties to have small populations where everyone not only knows everyone else, but is also related to most everyone else. What happens to one affects all because the community consists of only a handful of extended families.
For all of these reasons, corporate defendants are often victims of extremely large verdicts. In the more infamous jurisdictions, the filing of an action there may amount to no more than a legal form of extortion or blackmail — regularly encouraging settlements of significant amounts. In a vicious cycle, these verdicts and settlements attract even more litigation, attorney advertising, and solicitation of lawsuits. Trying cases in these places requires an understanding that, sans a nearly miraculous outcome, any relief must be had through appeal — unless a change of venue can be accomplished.
II. The Solution
In a hostile jurisdiction, you have two options for winning: (1) Obtain a venue transfer and do not try the case there in the first instance, or (2) try the case in the bad jurisdiction and place all of your eggs in the appellate basket, hope that you have a reversible error, and hope that you preserved it. Fortunately, these solutions are not mutually exclusive. In fact, the failure of a court to transfer the litigation may be your golden reversible error. But, a change of venue is not an easy decision to obtain. Transfer of the litigation to another jurisdiction requires thoughtful planning from the onset. Not only must the issue of improper venue be asserted in the initial pleadings, it must be the subject of intense (i.e., time-consuming and sometimes expensive) investigation and discovery. Although every case is different, the following investigation should be considered:
1. Search newspapers with subscription bases in the jurisdiction (and television and radio stations) for information concerning the plaintiff and his/her family (such as marriage announcements, obituaries, marriage licenses) and contacts within the community. Search these same media for attorney advertisements regarding the litigation, publicity regarding the product, and any litigation in other areas. Search also for comments by prominent members of the community that might bear on the litigation and notices of meetings regarding the product in the community.
2. Search birth records of plaintiffs and known relatives at the State Office of Vital Statistics, which also has death, marriage, and divorce records, to determine relationships with others in the community.
3. Search probate, estate, and land records to determine ownership and histories of the plaintiffs’ residences, the identity of others in plaintiffs’ families (even though they may be cousins once removed), and the location of plaintiffs’ residences in relationship to others in the community.
4. Search the local or district clerk’s office to identify prior litigation involving plaintiffs or their relatives; significant verdicts in similar cases and the identity of jurors, parties, and attorneys; and the number of plaintiffs involved in litigation in the county (compared to the number of registered voters). If litigiousness in the particular jurisdiction creates an apparent bias that you wish to assert in support of a motion for change of venue, the number of lawsuits and number of plaintiffs involved, compared to the total population of the county, is important to support your claim.
5. Compare a list of known relatives of the plaintiffs with plaintiffs in other litigation, particularly other pharmaceutical and mass tort cases.
6. Identify any relatives of plaintiffs who are court employees serving in a relevant function — especially those with roles in jury registration, lists, summons, or selection; important city/county officials; city employees with power and influence; and politicians, business owners, or possible employers of other residents in the jurisdiction.
7. Research plaintiffs’ connections to other residents in the community through organizations such as unions, churches, social clubs, or even health clubs. Determine, for example, the size of the church that each plaintiff attends, when services are held, and the identity of other congregation members who have filed similar litigation.
8. Arrive early on the day of jury selection to see which potential jurors arrive together or arrive with plaintiffs. Bring or hire help for this task if necessary.
This investigation must be supplemented by discovery such as interrogatories and depositions of the plaintiffs and family members or employers to identify relatives of the plaintiffs. Such inquiries must delve into areas such as where the relatives live, were educated, by whom they are employed, and their involvement in other litigation.
The purpose of this extensive investigation and discovery into issues other than the substance of the lawsuit is to establish a web of interconnections within the jurisdiction so apparent that the court must find that the entire city or county is tainted by potential bias. Faced with rural jurisdictions in Mississippi, we embarked upon such a plan to establish that a fair trial could not be held for a corporate pharmaceutical company. The counties involved, Jefferson and Claiborne, were notorious as cottage industries for mass tort litigation, for an excess number of plaintiff verdicts (some outrageously large), and the involvement of hundreds of residents as plaintiffs.
IV. The Result
Just prior to jury selection in Jefferson County, the court transferred the case to neighboring Claiborne County. After collecting much of the same information again, we filed another motion for change of venue, which we supplemented during and following jury selection. Losing that motion, we followed with a motion to strike the venue. On appeal, after an adverse verdict, the Mississippi Supreme Court held that the trial court abused its discretion by improperly changing venue to Claiborne County: “The record is replete with evidence that Janssen sufficiently proved bias in the community of Claiborne County. Therefore, although the trial court correctly found that it was proper to change venue from Jefferson County, we find that Claiborne County is not a proper venue in which a fair trial may be conducted. This issue alone merits reversal.” 1
The facts supporting this conclusion were that 38 of the original 155 plaintiffs were from Claiborne County; 114 residents of the jurisdiction had similar suits; of the 105 qualified prospective jurors not excused for illness or hardship, over onehalf had personal relationships with plaintiffs or their counsel. Six prospective jurors actually had claims against the defendant for use of the product at issue. Many of those remaining as prospective jurors knew one or more of the plaintiffs or had seen negative attorney advertising or news reports about the drug in question.
Other prominent facts included in the motion established that (1) prominent residents such as the mayor, police officers, and relatives of politicians were plaintiffs; (2) there existed an unusually high volume of litigation in the county when one considered the number of lawsuits compared to the general population; (3) the named plaintiffs had close relationships with the district clerk, justice court judge, and constable; (4) the plaintiffs were related to innumerable county residents (although we did attempt to number them); and (5) one plaintiff had been an assistant high school principal in the small county for 29 years.
As for pretrial publicity, Janssen supported its venue motion with excerpts from depositions from plaintiffs who testified that they had heard about the lawsuit “on the television like everybody else.” Many testified that advertising, not medical injury diagnosed by a doctor, had prompted their lawsuit. The evidence established that the county had been absolutely bombarded with attorney advertisements and attorney-organized meetings and had been inundated with plaintiff-propelled gossip. Other evidence used in support of the motion included awards in the counties in the immediately preceding three years of $150 million and $48 million. Thus, it became apparent that the adverse message had been pervasively accepted in the community and that a fair trial could not be had.
The ascertainment of impartial justice is, or should be, the supreme goal — indeed the very purpose of existence — of all courts. A fair trial necessarily contemplates the right to be tried in an atmosphere in which public opinion is not saturated with bias, hatred, or prejudice against the defendant. A fair trial must take place where jurors do not have to overcome that atmosphere or the later silent condemnation of their fellow citizens if they render a defense verdict. But, as with all things of value, a fair trial does exact a price. Ensuring an unbiased atmosphere requires substantial efforts to evaluate and demonstrate the prevailing attitudes in the jurisdiction. In the words of Sir Winston Churchill, it takes “blood, toil, tears, and sweat.” 2 But, if you prevail on your change of venue motion, it will be one of your “finest hour[s].”3
[i] Janssen Pharmaceutica, Inc., and Johnson & Johnson v. Bailey et al., 878 So.2d 31 (Miss. 2004).
[ii] Churchill, Winston. “Blood, Toil, Tears, and Sweat.” Address to the House of Commons. 13 May 1940. Retrieved 7 December 2007, from The Churchill Centre web site: http://www.winstonchurchill.org/i4a/pages/indexcfm?pageid=391.
[iii] Churchill, Winston. “Their Finest Hour.” Address to the House of Commons. 18 June 1940. Retrieved 7 December 2007, from The Churchill Centre web site: http://www.winstonchurchill.org/i4a/pages/index.cfm?pageid=418.
- Janssen Pharmaceutica, Inc., and Johnson & Johnson v. Bailey et al., 878 So.2d 31 (Miss. 2004). Jump back to footnote 1 in the text
- Churchill, Winston. “Blood, Toil, Tears, and Sweat.” Address to the House of Commons. 13 May 1940. Retrieved 7 December 2007, from The Churchill Centre web site: http://www.winstonchurchill.org/i4a/pages/indexcfm?pageid=391 Jump back to footnote 2 in the text
- Churchill, Winston. “Their Finest Hour.” Address to the House of Commons. 18 June 1940. Retrieved 7 December 2007, from The Churchill Centre web site: http://www.winstonchurchill.org/i4a/pages/index.cfm?pageid=418. Jump back to footnote 3 in the text