Court Transparency Issues 2018
Transparency in Private Attorney Contracting (S.419)
SCCJC is seeking to provide transparency and set parameters for the AG or a Solicitor who is hiring outside attorneys to represent the state, and set reasonable limits to how much they can be paid on behalf of the state.
The past decade has witnessed dramatic increase in the use of private contingency fee attorneys on behalf of the state by both attorneys general and governors. While bona fide rationale exists for state use of private sector legal services in specific instances, the lack of uniform policies to govern such arrangements has the potential for abuse and conflict of interest, which has been seen in a number of states.
Recognizing this, leading state attorneys general have called for reforms that recognize the discretion and independence needed to enforce state laws free from the influence of parties that may have a private interest in the outcome of litigation. Proposed reform measures have sought to preserve the ability for state attorneys general to contract with outside contingency fee counsel while insulating themselves from political pressure and ensuring maximum benefit to taxpayers. Policy proposals focus on common sense good government principles including transparency and accountability.
The purpose of the act is essentially to create transparency, reasonably limit contingency fees, and codify recent case law requirements to ensure that the State remains in control of litigation when it hires contingency fee counsel.
Under the proposed Act:
- The Attorney General must analyze certain factors and make a written determination that contingency fee representation will be both cost-effective and in the public interest, prior to entering into a contract.
- Contingency fees are subject to tiered limits and an aggregate cap of $50 million, exclusive of reasonable costs and expenses.
- Certain requirements must be met throughout the contract to ensure government attorneys retain complete control over the litigation.
- Contingency fee contracts must include certain standard provisions reflecting what is expected of the government attorneys and contingency fee counsel.
- The contingency fee contract, payments made under the contract, and the Attorney General’s written determination about the need for contingency fee representation are to be posted on the Attorney General’s website. Other records relating to the contract are to be subject to the state’s Freedom of Information Act. The private attorneys and paralegals are to maintain detailed contemporaneous time records for presentation to the Attorney General on request.
- The Attorney General must submit an annual report to the Senate President and Speaker of the House that describes the State’s retention of contingency fee counsel in the preceding calendar year.
Asbestos Trust Transparency (S.452)
Approximately 100 companies have been forced into bankruptcy due to asbestos-related liabilities, including virtually all primary historical defendants such as manufacturers of asbestos-containing thermal insulation. Trusts holding $36.8 billion (2011 GAO Report) have been established to pay for harms caused by reorganized companies’ products.
Thus, plaintiffs have two separate paths to recovery: asbestos bankruptcy trusts and tort cases. Trust claims contain important information regarding the plaintiff’s exposures to products of bankrupt companies and admissions that those products caused the plaintiff’s disease.
Plaintiffs routinely “double dip,” receiving tort lawsuit settlements/awards, then, after an award or settlement they file claims with multiple asbestos bankruptcy trusts and get paid again and again. By bringing tort claims first, plaintiffs give exposure history testimony that bolsters their tort cases against solvent companies while suppressing evidence of exposure to bankrupt companies’ products. These exposures are compensated by the various asbestos trusts.
Plaintiffs should be required to file and disclose all asbestos trust claims before trial. SCCJC legislation would require claimants, during discovery in state asbestos tort actions involving a solvent defendant, to disclose asbestos trust claims that have been submitted or could be submitted on behalf of a plaintiff to an asbestos trust entity established by a U.S. Bankruptcy Court.
The legislation does not deny victims their day in court. All rights to pursue compensation in the tort and trust systems are preserved. Plaintiffs do not face new burdens; the legislation simply changes the timing of the filing of trust claims: trust claims now routinely submitted after trial would have to be filed before trial to promote honesty and fairness in litigation. Claimants do not endure delays if timely disclosures are made.
Seatbelt Non-Use Admissibility in Civil Actions (S.239)
South Carolina recognizes that seat belts prevent needless injury and death in motor vehicle crashes. An overwhelming majority of South Carolinians – more than 90% according to 2014 federal estimates – choose to buckle up when they ride in passenger vehicles. And there is good reason for doing so: the South Carolina Department of Public Safety has recognized that “safety belts are the single most effective safety device for preventing death and injury.”
Seat belt use is not just a good idea, it’s the law in South Carolina. For almost three decades South Carolina has required every driver and every occupant of a motor vehicle to buckle up, and since 2005, South Carolina has empowered its peace officers to enforce the seat belt mandate as a primary offense. Even further, South Carolina statute provides for education programs to encourage safety belt use in communities across the state.  Regardless of whether they do so because of the legal requirement or because of seat belts’ life-saving ability, South Carolinians expect motorists to buckle their seat belts whenever they take to the roads.
Although buckling a seat belt costs nothing and takes just a few seconds, the failure to take this small step can generate enormous costs. According to the South Carolina Department of Public Safety, unbelted vehicle occupants die in crashes at a vastly disproportionate rate. In 2012, unbelted occupants accounted for less than 10% of South Carolina motorists but more than 50% of fatalities. As the South Carolina Department of Public Safety has explained, “Failure to use a seat belt contributes to more fatalities than any other single traffic-related behavior.” When unbelted occupants survive collisions, they experience much worse injuries. Hospital costs for unbelted motorists typically run 2 – 5 times higher than such costs for crash victims who wore their seat belts. When motorists choose to ignore their duty to buckle up, easily preventable injuries and avoidable costs occur.
Despite South Carolina’s expectation that motorists wear their seat belts to prevent injuries in the event of a collision, South Carolina jurors asked to render verdicts in lawsuits arising from motor vehicle accidents are precluded from hearing evidence that a vehicle occupant had failed to buckle up. Current statute prohibits jurors from considering the extent to which a person’s refusal to wear a seat belt caused that occupant’s injuries, or from using their best judgment in allocating responsibility for an unbelted occupant’s injuries between the crash itself and the failure to wear a seat belt. In operation, this provision amounts to a “gag rule” preventing discussion of important evidence. Senate Majority Leader Shane Massey’s legislation, S.239, is needed to allow South Carolina’s jurors to learn the whole truth, so that they may decide based on the complete evidence what recovery an unbelted motorist should receive.
See S.C. Code Ann. §56-5-6565.
Other Recent Agendas:
Trespasser Responsibility Act (H.3266) (passed 2015)
Due to a shift in legal interpretation, land owners could have liability for uninvited guests. This legislation preserves fundamental fairness in dealing with trespassers and simply codifies the existing common law.