BUSINESSWEEK ONLINE : SEPTEMBER 18, 2000 ISSUE
NEWS: ANALYSIS & COMMENTARY Commentary: The Hidden Culprit: The U.S. Legal System Who's to blame for the tire debacle? So far, most of the finger-pointing has been directed at the obvious suspects: Bridgestone/ Firestone, Ford, and the National Highway Traffic Safety Administration (NHTSA). At this early stage, they certainly appear to deserve it. But there's another less visible institution that also shares some responsibility for this public-safety disaster: the American legal system. Long before the NHTSA announced in May that it was investigating Firestone tires, there were more than 60 personal-injury lawsuits stemming from blow-out-related injuries, according to the Attorneys Information Exchange Group (AIEG), an association of plaintiffs' lawyers who share documents with one another. The earliest of these cases, AIEG says, dated back to 1991. Whatever Firestone, Ford, or the NHTSA did or did not do, these cases should have alerted the public, the media, and regulators to the dangers of ATX and Wilderness tires. Instead, these suits went almost unnoticed. One big reason: Firestone and Ford both managed to win protective orders that prevented much of the information generated by the cases from becoming public. And plaintiffs and their lawyers signed confidentiality agreements blocking them from discussing some details of the suits, such as settlement amounts. BEHIND CLOSED DOORS. Did this acquiescence to secrecy delay public awareness of the tire defect? ''Absolutely--by a matter of years,'' says former NHTSA chief Joan Claybrook, who is now the president of Public Citizen, a Washington public interest group. And the danger extends far beyond Firestone. Many large American companies now routinely request and are granted protective orders when they are sued and confidentiality agreements when they settle. That means much of the country's most important product-liability litigation is conducted behind closed doors. Who's to blame? Just about everybody involved in the legal system. Aggressive corporate defense attorneys routinely seek broad protective orders--whether cases involve sensitive commercial secrets or not. Plaintiffs' lawyers sign such agreements to win quicker victories, despite how much they love describing themselves as public safety advocates. But the group that bears the most responsibility is the judiciary. Judges don't have to agree to such conditions. While attorneys are mandated to act in the best interests of their clients, judges must answer to the public. ''The law recognizes that allowing each of the parties to defend their own private interest does not necessarily protect the public interest--and that's why it assigns judges the responsibility of defending the public,'' says Arthur Bryant, executive director of Trial Lawyers for Public Justice, a Washington group that frequently tries to open up secret settlements. RIGHTING WRONGS. Judges frequently argue that they are under pressure to approve these types of secret deals to avoid further overcrowding of dockets. That's a legitimate argument, but settling private disputes is not the only purpose of the civil justice system. It is also supposed to right wrongs that escape detection by the nation's regulatory bureaucracy. The Firestone litigation is a perfect example of what's wrong with the process. Surely some judges should have recognized that a serious public safety issue might be involved--and that secrecy would only delay any efforts to correct it. What can be done? Texas and Florida have both recently instituted stricter rules establishing the presumption that all litigation documents will be public. While the new laws still give judges discretion to approve protective orders and secret settlements in rare cases, it forces judges to go on record about why any case should be kept secret. Other states should follow suit before there's another disaster. By Mike France France covers legal affairs from New York. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ BACK TO TOP					RELATED ITEMS Ford: A Crisis of Confidence TABLE: The Challenges Ahead Commentary: The Hidden Culprit: The U.S. Legal System INTERACT E-Mail to Business Week Online

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