International presure to harmonize: The U.S. Civil Justice system in an era of global trade

The daily practice of many lawyers indicates that local bias is a problem in certain areas. Empirical studies surveying lawyers confirm anecdotal evidence.117 One study found that over fifty percent of defense lawyers reported bias against out-of-staters in their state cases. Over a quarter of plaintiffs' lawyers admitted this bias.118 Lawyers for out-of-state defendants readily acknowledge that suits brought in certain areas of particular states command a "settlement premium" because of the native bias of judges and juries in these areas.119 To collect this premium or a higher verdict, plaintiffs' lawyers take elaborate care to lay venue in one of these areas. The plaintiffs' bar also acknowledges that it often prefers to bring claims in state rather than federal court. Willie Gary himself, the plaintiffs' lawyer in the Loewen case, has said he generally brings his cases in state court and prefers that venue; he vigorously tries to defeat defendants' efforts to remove cases to federal court.120

A few elected state judges have been remarkably candid about the pressures they face. Formerly chief justice of the West Virginia

Supreme Court of Appeals and currently a plaintiffs' lawyer, Richard Neely-who gave an affidavit for Loewen submitted with its notice of claim-wrote several books while he was still a judge that described the incentives of state judges faced with out-of-state defendants. Based on many years' experience as a state elected judge and on discussions with numerous elected judges from other states, he described how elected judges depend on local support to win and keep a seat on the bench. Neely put it this way:

As long as I am allowed to redistribute wealth from out-of-state companies to injured in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else's money away, but so is my job security, because the in-state plaintiffs, their families, and their friends will reelect me.121

While he was a judge, Neely was rather careful in his books to avoid the topic of campaign contributions by lawyers. His Loewen affidavit, written since he has become a plaintiffs' lawyer, is more explicit on the subject. (Of course, Neely most likely did not write the affidavit for free.) Neely said, because of his experience and numerous discussions over the years with elected judges from other states, that the judicial campaign contributions of plaintiffs' lawyers are typically generous. "[T]he lawyers who regularly represent plaintiffs in personal injury, class action and toxic tort cases contribute handsomely to judicial campaigns."122 This is so because contingency fees give plaintiffs' lawyers a direct personal stake in the outcome of trials. "A judge can allow a plaintiffs' lawyer to retire early in life on a handsome income with one discretionary ruling! When multi-million dollar judgments are involved, a judge's decision not to set aside a

punitive damage award may make a plaintiffs lawyer millions of dollars after taxes."123