Digging us out of a “Hellhole”: A Plan to Reform Missouri’s Courts
The Problem
Missouri is consistently ranked one of the worst “judicial hellholes” in the country by the
American Tort Reform Foundation, and it is no wonder. 1 Our courts are considered some of the
worst in the country for businesses and those defending lawsuits, ranked 42/50 by the U.S.
Chamber’s Institute for Legal Reform. 2 79% of Missourians say that the number of lawsuits in
this state is a serious problem. 3 Businesses will not move to Missouri, will not be able to grow in
Missouri, and will not hesitate to leave Missouri so long as trial lawyers choose our judges,
control the laws that determine their own success or failure, and profit off the backs of
hardworking Missourians. People who are harmed should be able to receive justice promptly
and fairly in the courts, but the days of lawsuits being a lottery ticket for well-connected trial
lawyers need to end now.
Catherine’s Plan
• Reform our courts
(1) Direct Appointment of Judges
Missouri’s Supreme Court judges, appellate court judges, and even some of its trial judges are
currently appointed through a system that unfairly and undemocratically privileges the views of
lawyers over the will of the people.
Our current judicial selection method puts control over nominees to our courts in the hands of
judicial commissions. The commission for the Supreme Court and appellate courts has seven
members: three appointed by the Governor, three lawyers appointed by lawyers admitted to the
Missouri Bar, and one Supreme Court judge appointed by the Supreme Court. For certain bigcity trial courts, the commissions consist of one judge, two gubernatorial appointees, and two
lawyers appointed by lawyers.4
1
The ATR Foundation currently ranks Missouri the fourth worst judicial hellhole in the country.
http://www.judicialhellholes.org.
2
http://www.instituteforlegalreform.com/states/Missouri.
3
http://www.sbj.net/Content/ENEWS-ARTICLES/ENEWS-ARTICLES/Article/OpinionMissouri-should-rein-in-lawsuits/29/82/104157
4
Mo. Constitution Art. V, § 25, http://www.moga.mo.gov/mostatutes/ConstArticles/Art05.html.
The commissions send a list of three nominees for any judicial vacancy to the Governor, who has
to pick one of the three or else the commission gets to make the choice itself. 5
This system ensures that the interests of Missourians and the views of their democratically
elected representatives will always come second to the interests of lawyers. Since judges know
that they owe their positions and any chance at advancement to the lawyers who appoint them,
they regularly make decisions at variance with the law that favor trial lawyers and hurt ordinary
Missourians and the businesses that they own or that employ them. 6
I am in favor of a constitutional amendment shifting Missouri to a system of judicial
appointments like the one used to appoint judges to the federal courts, in which the Governor
would nominate a candidate, and the State Senate would then vote to confirm or reject the
nominee. This way, the people’s representatives would be choosing our judges instead of the
lawyers’ representatives.
(2) Require on-the-record hearings and written orders
Supreme Court Justice Louis D. Brandeis once said that “sunlight is said to be the best of
disinfectants.”7 Far too much of the work of our courts today happens far from sunlight, in
judges’ chambers where arguments are often heard off the record, rulings are often made with
little explanation, and where justice is dispensed outside of the watchful eyes of the public.
Judges should be required to hold hearings on motions on the record in open court and should be
required to issue substantive written orders on motions with clearly delineated findings of fact
and conclusions of law, where appropriate.
5
Id.
No less a figure than Supreme Court Justice Sandra Day O’Connor said over half a decade ago
that Missouri’s selection system had become too secretive and dominated by the special interests
of lawyers. http://www.columbiatribune.com/opinion/op-ed/missouri-plan-has-turned-toosecretive/article_e4f72099-20ee-511f-9376-764e2ffbbf23.html. Scholarly research on the
subject of judicial selection has found Missouri’s system to be the “most elitist” and “least
democratic” of the methods in use in the United States.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1518029.
7
http://www.brandeis.edu/legacyfund/bio.html
6
• Stop trial lawyers profiteering off of the state
The Attorney General’s office is supposed to represent the interests of all Missourians.
However, often times when the Attorney General’s office is dealing with the biggest cases with
the most impact on Missourians, the office’s hundreds of attorneys are not even the ones in court.
Attorney General Chris Koster has made a habit of hiring expensive outside counsel to argue
cases for the state so that he will not have to.8 These private lawyers typically work on a
contingency fee bases—they get a percentage of whatever amount they recover in court.
This is outrageous. We pay the Attorney General and his huge staff of lawyers to do the state’s
legal work. We do not pay them to subcontract cases out to private trial lawyer firms, which
then draw extravagant profits from settlements and judgments at the expense of the state of
Missouri and the Missourians that it serves who would otherwise receive that money.
To the extent that the Attorney General’s office is unable to handle its caseload, it should be
authorized to hire private attorneys. However, these attorney should be paid negotiated, set fees,
and not be retained on contingency. As Governor, I will put an end to the practice of enriching
trial lawyers at the expense of Missourians.
• Stop frivolous lawsuits
(1) Loser pays
Currently, there is little if any potential downside to suing someone. In some states like Alaska,
the losing party to a lawsuit has to pay at least a portion of the winner’s legal fees (the same
system is in English courts and in most other common law countries).9 However, in Missouri, a
party can file a frivolous lawsuit, refuse reasonable settlement offers, and then, if it loses the
case, simply walk away. The defendant is stuck with legal bills and no way of seeking
compensation. Plaintiffs, knowing that juries sometimes grant huge awards even in bad cases,
8
For example, Koster received a $25,000 donation from a group of New Mexico trial lawyers,
and promptly thereafter opened bidding for outside counsel to represent Missouri on a
contingency fee basis in a lawsuit against GlaxoSmithKline.
http://www.stltoday.com/news/local/govt-and-politics/lawyers-lobby-and-donate-tokoster/article_7603db67-978d-5a2d-9b44-869c51165130.html
9
http://www.pointoflaw.com/columns/archives/004140.php; http://www.outlaw.com/topics/dispute-resolution-and-litigation/court-procedure/an-overview-of-civilproceedings-in-england-and-wales/.
can play chicken with the people they sue, knowing that there is no downside for them and that
the defendants have only downside.
This is not right, and it encourages frivolous, job killing lawsuits. Missouri should adopt a
system like Texas’s offer-of-settlement system. In Texas, if a defendant offers the plaintiff a
settlement that the plaintiff rejects, and the final judgment awarded is significantly less than the
settlement offer, the plaintiff can be forced to pay the defendant’s legal bills from the time of the
settlement offer. Similarly, if the plaintiff offers the defendant a settlement, and the final
judgment awarded is significantly more than the settlement offer, the plaintiff can recover its
legal fees from the defendant from the time of the settlement.10
This system encourages parties to be reasonable with each other, and punishes bad actors who
force defendants to try cases that are completely unmeritorious. As Governor, I will press for
adoption of a Texas-like offer-of-settlement loser pays system.
(2) Adopt stricter expert witness rules
Over 30 states and the federal court system use a system called the Daubert test to determine
whether to allow the testimony of expert witnesses into evidence. 11 The Daubert test states that,
for expert testimony to be admitted, it must be relevant, it must be based on sufficient facts or
data, it must be “the product of reliable principles and methods,” and the expert has to have
“reliably applied the principles and methods to the facts of the case.” 12 In assessing whether the
expert’s methods are reliable, courts question whether the expert’s techniques have been
subjected to peer review, whether they have a known error rate, and whether they are accepted
by the scientific community. Essentially, the Daubert test ensures that expert witnesses meet a
basic standard of reliability, and that they are not simply making it up as they go along.
In contrast, Missouri’s rule for the admission of expert witness testimony is significantly more
lax. It requires only that an expert be deemed reliable, and that the facts on which the expert
bases his opinion be of a type reasonably relied upon by experts in his field. 13 In other words,
while the Daubert standard requires an expert to have reliably applied reliable principles and
10
https://www.texasbar.com/AM/Template.cfm?Section=Texas_Bar_Journal&Template=/CM/Con
tentDisplay.cfm&ContentID=19968.
11
http://lawprofessors.typepad.com/evidenceprof/2011/04/wisconsin-dauberthttpuspoliticseinnewscom247pr206887.html
12
As codified in Federal Rule of Evidence 702. https://www.law.cornell.edu/rules/fre/rule_702.
13
Mo. Rev. Stat. § 490.065 http://www.moga.mo.gov/mostatutes/stathtml/49000000651.HTML
methods to the facts of the case, Missouri only requires that the facts the expert relies upon must
be reasonable.
As a result of this lax standard, plaintiffs’ lawyers regularly shop for professional expert
witnesses who can sway a jury with arguments based on junk science and unreliable
methodologies. These practices should have no place in our state’s courtrooms, and as Governor
I will press for immediate adoption of the Daubert standard.
(3) Clarify venue laws
Venue laws determine where lawsuits can be brought. Currently, when a defendant from outside
of Missouri sues a business in Missouri, as long as it also sues individual defendants it has its
choice of where to file its lawsuit. 14 Often, plaintiffs will find an employee of the business who
lives in a county with courts that are known to be friendly to plaintiffs’ lawyer, and file in that
county. 15
This is unfair. When out-of-state plaintiffs sue businesses in Missouri, they should bring the
lawsuit in the county where the business is registered. Out-of-state plaintiffs should not have the
right to shop around Missouri until they find a court that they like. As Governor, I will work to
reform our venue laws to put an end to venue shopping once and for all.
• Reform damages
(1) Cap punitive damages
Punitive damages are damages awarded by a court to a victorious plaintiff that do not
compensate the plaintiff for any actual injury suffered. Instead, some laws provide that, on top
of compensating the plaintiff, defendants can be made to pay additional money, purely as a
punishment and as a deterrent to others. However, the prospect of unlimited punitive damages,
and therefore, unlimited fees, is a major incentive for trial lawyers to file suit.
In 2014, the Missouri Supreme Court overturned the will of the people of Missouri by holding
unconstitutional a law passed in 2005 capping punitive damages at $500,000 or five times the
14
Mo. Rev. Stat. § 508.010.
http://www.moga.mo.gov/mostatutes/stathtml/50800000101.HTML.
15
http://themissouritimes.com/12814/press-release-missouri-chamber-priorities-become-lawweek/.
actual damages awarded to the plaintiff. 16 The Court rested its opinion on shaky legal grounds.
Essentially every other state to have considered the constitutionality of punitive damage caps
under analogous state constitutional provisions has found them to be constitutional. 17
As Governor, I will work to overturn this decision, whether that requires legislation, new judges
on the Supreme Court, or an amendment to the Missouri Constitution.
(2) Put punitive damages towards victims compensation
Currently, the state has a right to collect 50% of any punitive damages awards in the state, after
attorneys’ fees and expenses are deducted. Of the money collected, 26% goes to the Basic Civil
Legal Services Fund, and the remaining 74% goes to the Tort Victims’ Compensation Fund. 18
The Basic Civil Legal Services Fund provides civil legal assistance to the needy who cannot
afford lawyers. The Tort Victims’ Compensation Fund provides money to people who win
lawsuits, but who are unable to collect the damages they are owed by the people who harmed
them.
Both of these programs are chronically underfunded. For example, in the most recent year for
which data is available, the Tort Victims’ Compensation Fund accepted almost $10 million in
claims, but was only able to pay out $366,000.19
As Governor, I will work with the General Assembly to raise the percentage of punitive damages
awards that the state is allowed to collect from 50% to 75%, and calculate that percentage based
on the total punitive damages award, instead of the current system of first deducting attorneys’
fees and expenses. This will further the cause of justice by compensating more fully those with
valid claims to submit to the Fund, while at the same time disincentivizing plaintiffs and their
lawyers from chasing unwarranted punitive damages awards.
(3) Medical malpractice punitive damage caps
Last year, I applauded the General Assembly for passing noneconomic damage caps for medical
malpractice lawsuits, which have helped and will help protect our doctors and health care
16
Lewellen v. Franklin, 441 S.W.3d 136 (Mo. 2014),
https://scholar.google.com/scholar_case?case=15603618664934992172.
17
http://www.fed-soc.org/publications/detail/missouri-supreme-court-unanimously-declares-capon-punitive-damages-unconstitutional.
18
Mo. Rev. Stat. § 537.675, http://www.moga.mo.gov/mostatutes/stathtml/53700006751.html.
19
http://labor.mo.gov/DWC/Tort_Victims.
providers from runaway malpractice insurance costs.20 I believe that noneconomic damage caps
are only part of the equation. In addition to capping punitive damages in general as described
above, I believe in imposing special, lower caps for medical malpractice cases in particular,
because of our state’s vital need to reduce the cost of healthcare.
(4) Eliminate joint and several liability
Currently, under Missouri law, if one defendant is found to be 51% or more at fault, then he can
be forced to pay 100% of the damages if the other defendants cannot pay their share. 21 This
system of joint and several liability unfairly punishes people or businesses that responsibly pay
for insurance policies that cover lawsuits against them, or that control their finances well enough
so that they have the ability to pay out when people successfully sue them.
No defendant should be required to pay for more than the damage that he caused. People should
be on the hook for their own mistakes, and not the mistakes of others. As Governor, I will press
for the elimination of joint and several liability entirely in this state.
20
Mo. Rev. Stat. § 538.210, http://www.moga.mo.gov/mostatutes/stathtml/53800002101.HTML;
http://www.healthcarelawinsights.com/2015/05/missouri-tort-reform-reformed-again-medicalmalpractice-damage-caps-reinstated/.
21
Mo. Rev. Stat. § 537.067, http://www.moga.mo.gov/mostatutes/stathtml/53700000671.html.