APPEL: Let’s Talk Turkey About COVID-19 And Louisiana’s Legal Climate

For as long as anyone can remember the Louisiana legislature has been dominated by lawyers, many of whom are what we would call trial lawyers or are those who may make their living directly or indirectly from the egregious amount of litigation created by trial lawyers. And for support they could always count on non-lawyer legislators to whom the trial lawyers contributed with heavy campaign donations. This structure has created a pro-litigation climate in Louisiana instead of a pro-growth climate. Worse, our governor is an unabashed trial lawyer, who no doubt will attempt to veto ANY effort to make Louisiana’s civil justice system fairer.

We all know the results of the sue-friendly attitude in our state. High insurance rates, people and businesses who would rather go to court than to honor agreements because they believe that they can make more money from litigation, insurance companies who would rather settle for outrageous sums than take a chance in a Louisiana court, corporations who won’t locate in our state because they have no trust in our civil justice system, and so on. All of this translates into high costs for citizens and business and that brings about low employment, few opportunities to move up, lower incomes, poverty, out-migration.

The simple description for Louisiana used throughout the business world is that we are a “Judicial Hellhole”. The trial lawyers argue vigorously against such a notion, but bluntly put, business executives hear it and believe it accurately describes our climate, so it is so, and we remain stuck in an economic ditch.

And now we have a looming civil justice crisis beyond anything that we have ever experienced. As small and large businesses re-open and we relax our stay at home policies there is the real probability that employees and customers will contract COVID-19. It will be impossible to know if they acquired it on the job or not simply because, as President Trump says, it is an “invisible enemy.” But unless we do something quickly, we can be assured that it will create an entirely new cottage industry for the “It’s not how big the wreck, it’s how big the check” get-rich-quick trial lawyers to sue every business in the state.

And nothing will throw cold water on our economic recovery more than a torrent of lawsuits trying to squeeze the life out of businesses. Worse, it is unlikely that many businesses have any insurance coverage for disease-based claims. So, for trial lawyers, who have made fortunes intimidating insurance companies with the fear of the Louisiana justice system, they will find that businesses will chose bankruptcy over litigation.

The outcome of not addressing our litigation-happy state’s justice system will be a climate of less economic activity and fewer decent jobs. In effect the trial lawyer few will win again, and the citizen many will pay the price with lower prosperity.

There is an alternative. The legislature could move at once to shield businesses from litigation based upon the assumption that an employee catches COVID-19 at work. No one can really prove where they catch a virus and even assuming reasonable measures are taken to guard oneself, all of us will be exposed anyway. So, in effect the businesses’ defense against such cases will be a matter of who the judge is or the sympathy of a jury.

A fair justice system should be based upon provable facts and reward reasonable damages; but under our current law that is not how so much of our system works. Trial lawyers know that business fears the emotional-response aspect of our system and they take advantage by using that fear to force unfair settlements. So, unless the Legislature acts, this event opens the door to countless unprovable lawsuits, resulting in unnecessary legal costs, those unfair settlements or outrageous judgments and ultimately the inability of our economy to produce the jobs we need.

It is incumbent upon our Legislature to pass legislation to protect the vast majority of our citizens’ ability to have and keep a good job by shielding businesses from an avalanche of unprovable lawsuits. After that the Legislature will have to take one more important step, they will have to defend our people against the inevitable veto by our trial lawyer governor.

When they override that veto, they will be saying to the world that Louisiana’s climate is truly business-friendly and we place growth and prosperity for our people over the implacable appetite of litigation happy lawyers.



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