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Litigation: The myth of Philadelphia as a judicial hellhole

The Complex Litigation Center’s so-called flaw merely amounts to efficiency, which can be advantageous to both plaintiffs and defendants

Every year, the American Tort Reform Association (ATRA) publishes a top 10 list of what it calls “Judicial Hellholes.” As the ATRA describes them, these courts “have been considered places where judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits.” If you believe the lists, these jurisdictions are the worst of the worst—places where trial lawyers allegedly finance judges and where populist juries won’t give defendant corporations a snowball’s chance in hell of winning a case.

For the past two years running, the Complex Litigation Center of the Philadelphia Court of Common Pleas has topped the ATRA’s list. But as someone who has spent most of his career living and practicing in Philadelphia, my perspective on this so-called “hellhole” is different. Although some of you may pity me for suffering the horrible fate of working in such a place, just know that Philadelphia is not bad at all; in fact, it’s a great place to practice law. In fact, I would go as far as to say that the hellhole distinction is more myth than reality. Take it from someone who’s practiced there.

How could I be so bold as to call this widely held belief a myth? First, let’s discuss the “science” of the ATRA’s analysis. Why are there “so many” cases filed in Philadelphia as compared to the rest of the Commonwealth? Why? Could it be that asbestos diseases associated with ship-building during World War II didn’t occur in Johnstown? Why? Could it be that pharmaceutical manufacturers tend to center in Philadelphia? Has there been any test of the hypothesis that there are a disproportionate number of cases filed in Philadelphia? Not really.

Even the ATRA points out that “the clear majority of judges are fair, and the negative publicity can be blamed on a few bad apples.” But in order to truly dispel this myth, we must look at why Philadelphia has specifically been pegged as a hellhole. The Philadelphia court system has designed and implemented an efficient system for the disposition of cases. It’s predicated on two elements. The first is judicial intervention, early and often. After the case is filed, the court provides a regular, periodic opportunity to work at managing the litigation. The second element is an early trial date. Once an assessment of the case is made, a trial date is set for all cases, or bellwether cases are selected with the hope that the outcome of one will predict the outcome of others. This system can be attractive to plaintiffs because it means a much quicker resolution than they may experience in other courts.

The ATRA argues that the efficiency of the system in Philadelphia does not afford “adequate time to fully assess and defend numerous claims.” Really? When did defense counsel become overwhelmed with manpower demands they could not meet and beat? Isn’t it the defendant who has the money, power and ability to allocate unlimited resources to defeat an innocent and injured plaintiff? Apparently not in Philadelphia’s system. In fact, the Philadelphia system saves defense costs by compacting pleadings, discovery and trial in a short period of time. And the two years to trial goal is not a Philadelphia invention but one encouraged by the American Bar Association in a joint report on the model time standards for state trial courts.

And what about the “liberal admission” of expert testimony in Philadelphia courts? The admission of expert testimony is governed by state law dating back to the 1920s, and the state law is more conservative-restrictive than the federal standard. In the right case, and I’ve experienced this, the court will exclude expert testimony and eliminate the case. If you’re right, just stand firm.

Beyond efficiency, the perception also exists that juries in Philadelphia are more likely to rule in favor of plaintiffs. This is nonsense. The juries are smart. Properly selected, intelligent people interested in justice will make the right decision, not based on sympathy but on the merits of the case. What many defendants forget during civil cases is that injured people are compelling and elicit sympathy from juries. But if a credible defense is presented, juries can see past mere sympathy and will render a proper verdict. To achieve this outcome, our adversary system requires equally skilled lawyers presenting evidence to a jury with an impartial arbiter to essentially call balls and strikes. In the Philadelphia court system, all of those components are in place.

So with that in mind, here’s how to use the Philadelphia court’s efficiency to your advantage:

  • Do not file reflexive motions to dismiss and obtain summary judgment. Seek an early judicial assessment of your claim’s or your adversary’s claim only if you are confident it will succeed. Sometimes, the first reaction is to file preliminary objections, our equivalent of a motion to dismiss. This can be a mistake. Losing an early assessment strengthens your adversary's case. At the very least, it gives them confidence and increases the chances that they’ll keep fighting until the final verdict has been rendered.
  • Setting an early trial date may be seen as a disadvantage to some, but by committing to an early date, you communicate strength to opposing counsel, which may encourage settlement. It also helps to set a deadline for pre-trial activity if the case does go to trial. This way it won’t drag on for multiple presidential terms. Defendants should want enough time to properly prepare their case, but not so much that they are burdened with unnecessary and disadvantageous costs.
  • Pursue limitations on discovery, including limits on the number of interrogatories, document requests and depositions. Every deposition drives up legal expenses. Deep-pocketed defendants may be inclined to abuse their financial advantage and wear their opponents down into submission. This strategy ignores the fact that many plaintiffs possess strong convictions and a willingness to prove they’re right, regardless of costs. Coupled with lawyers working on a contingency basis, the “discover them to death” approach can easily backfire.
  • Early judicial intervention can be a benefit. You have to pick your issues, but, by involving the court on as frequent a basis as necessary, you minimize the chances that you will not be ready for trial when the trial date arrives. You don’t do yourselves any favors with judges by dragging out discovery. Working through discovery in an efficient manner shows the bench you’re working with them, not against them.
  • Prepare for trial, not for settlement. By employing this strategy, you actually improve your chances of not going to trial. The more polished the case you bring to the courthouse steps, the more likely you’ll settle on those steps. Come prepared to go to trial, and you may find yourself pleasantly surprised by a settlement.
  • If the case goes to trial, be efficient there, too. Don’t underestimate the power of getting to the point. Most jurors just want to go home. Be open and honest while understanding unnecessary details won’t endear you to the jury and won’t help the argument you’re trying to make. Follow a rule that all public speakers live by (or should): Tell them what you’re going to say, say it, and then tell them what you said. Nothing more.

Conclusion

The recent study from the International Center for Law & Economics titled “Are Plaintiffs Drawn to Philadelphia’s Civil Courts? An Empirical Explanation,” showed that plaintiffs in Philadelphia are less likely to take settlements than non-Philadelphia plaintiffs. This simply means that there is a belief among plaintiffs that they can win in Philadelphia. It doesn’t mean that they are actually more likely to win. There is no inherent reason or institutional bias that prevents defendants from winning in Philadelphia. It simply takes a skilled trial lawyer and a thoughtfully selected jury. With a clear focus on efficiency, the chance of winning a case in Philadelphia is far greater than a snowball’s chance in hell. 

Contributing Author

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Howard Scher

Howard Scher is co-managing shareholder of Buchanan Ingersoll & Rooney's Philadelphia office and is a former member of the firm's Board of Directors. With experience acquired in...

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