It can be humbling, during this season of next-year predictions, to objectively evaluate how accurate my forecasting was for 2015. Last year, I took a shot at predicting five "tipping points" for relatively unsung civil litigation issues, at least in terms of grabbing the national spotlight. This year, I resolve not to make such lists!
Arguably, I went two-and-two plus one issue still hung over from 2015.
Wins one and two come as immigration courts and civil forfeiture surely advanced in 2015 awareness. Losses came as our pet issues, "Civil Gideon" and criminalization of civil infractions, still seek traction. What else could explain the relative lack of government-backed civil representation outside New York and San Francisco? Or the fact that not even Ferguson, Mo., implemented few of the "Ferguson reforms"?
The "overtime" prediction is reform of the nation's longest-running personal injury litigation: asbestos lawsuits. You've noted the ubiquitous mesothelioma ads perhaps without knowing that is an asbestos-caused cancer. You might be surprised that the litigation, inclusive of both awards and defense costs, likely pushes $10 billion a year - similar to that of the National Football League.
It was on our agenda/watchlist because a business-backed reform called the FACT Act for "Furthering Asbestos Claims Transparency" would change the "trust fund" system being advertised. The asbestos defense community has long contended that there is a "tale of two exposures," with victim's attorneys telling one exposure story to bankruptcy trusts and another during trail and evidence discovery. Victim's advocates argue that the FACT Act is a dangerous invasion of privacy; the defense counters that filing a regular civil lawsuit exposes more information and there's been no landslide of privacy concerns there. Most of us realize there's little privacy in litigation, and that's part of the risk.
All that said, this is a partisan issue, at least in part because the asbestos attorneys are among the largest backers of Democratic issues and politicians. So when the U.S. House votes, as is expected this week, FACT will likely pass in that Republican-led chamber.
Despite a GOP advantage, the U.S. Senate is another matter, and the big question there is if hearings will be held, most likely in the Senate Judiciary Committee. Another question, since this is election season, is if something like "tort reform" can become a presidential election issue (count me as one vote "not likely").
I've written before about asbestos litigation, drawing ire from all sides. However, in 2016, there seems a real chance that the matter moves beyond attorney-on-attorney to ensnare victims who made those bankruptcy claims and may have given another story under oath in a civil trial. I call them "perjury pawns" and some credible sources assure me it will be happening any day now while equally wise sources tell me there's no way in hell the victims get dragged in.
But there is new asbestos context. The legal evolution involves a bankruptcy case called "Garlock" that an NPR report, aired when the case emerged nearly two years ago, described as "shedding light on the murky world of asbestos litigation." The fact Garlock remains relevant two years after it was decided is not good news for victim's attorneys, who predicted the "outlier" would have a quick exit.
Another zinger is that the December conviction of former New York Assembly Speaker Sheldon Silver on federal corruption charges involved a multimillion-dollar asbestos cancer kickback scheme. The attorneys allegedly involved were not charged, but the trial was a parade of shady referrals from a mesothelioma clinic and abuse of office.
Meanwhile, the Garlock legal team has filed civil racketeering lawsuits against several firms that were suing their clients, promising to push the issue well past the one case in North Carolina. The defendants have counter-sued with RICO claims of their own. So, as they say, "it's on!"
What are some obscure-to-important issues for 2016?
Well, we plan to spotlight the case of Lubbock, Texas, leading the nation's evolution in natural gas safety with the nation's first ban of a type of tubing called yellow CSST, a type of pipe to get gas into homes. While it is not exactly high profile yet, the regulatory movement is fueled by a tragic death and trial lawyer activism, and could gain national "tipping point" attention. It's a big deal even if that attention remains in the fire safety community and it's an example of how civil litigation can push reform.
Another civil litigation issue on our radar is the legal marijuana industry. We are seeing the first personal injury cases emerge along with non-obvious lawsuits like trademarks and environmental law. The trend is toward big-money success, and you can bet that means big-money litigation.
In addition, we feel another sea of change is coming in the spate of civil litigation against police actions, like the ones in Ferguson, that will pry open procedures and policies. And look for immigration courts to grab headlines in the spring when migration picks up.
As for the 2015 asbestos tie-breaker, we'll keep you posted.