Lawyers Assail Rise in Court Secrecy
Trial lawyers want judges to be more selective in choosing case files to seal from public view. CONFIDENTIALITY AGREEMENTS
CONFIDENTIALITY orders blocking public access to details of product-liability, environmental, and medical malpractice cases - even after the case has ended - are harming the public and undermining the legal system. That is the conclusion reached by the Association of Trial Lawyers of America (ATLA), which at its recent annual meeting here, passed a resolution requesting judges not to grant secrecy orders - except in rare instances. The resolution also requested lawyers to refuse to sign them, thereby keeping court files open to other lawyers, the public, and the press.Skip to next paragraph
Subscribe Today to the Monitor
``The truth about lethal fuel systems, exploding lighters, faulty medical devices and procedures, contaminated food, vehicle flipovers, and other life-threatening situations is lost to the public'' when case files are sealed after the case ends, says Bill Wagner, president of ATLA, a plaintiff-lawyers' group.
Such orders are frequently solicited by corporate defense attorneys as a prerequisite for a monetary settlement in a product-liability case. The intent, say plaintiffs' attorneys, is usually to protect corporations from more lawsuits involving the same product, and to squelch bad publicity.
``The result is a legal system that keeps the truth under lock and key,'' and can result in further harm to individuals unaware that a product is dangerous, Mr. Wagner says.
The rise in confidentiality orders began about 15 years ago when the numbers of product-liability lawsuits started growing. There were a number of lawsuits involving the Ford Pinto's exploding fuel tank, the location of the fuel tank on some General Motors cars, Bic cigarette lighters, asbestos, and the Dalkon shield and other contraceptives. Add to those well-known cases the rise in malpractice suits against hospitals and doctors, as well as suits alleging health problems due to contaminated water supplies.
A typical scenario after a personal-injury suit involving a product is that the company making the product becomes fearful that other suits will follow. It might then ask the court for a gag order so the information will not leak out during the trial. A confidentiality agreement may follow after the trial to keep details secret. In cases involving an out-of-court settlement and a large sum of money, defense lawyers frequently require as a condition that the plaintiff's lawyer, and the plaintiff, agree never to talk about the details of the case.
When the trial is over, defense lawyers frequently will present an agreement already signed by both parties requesting the judge to seal case records. Many judges, usually overworked and happy to be relieved of a case, agree. The case thus ends with the files locked away. Entire files are sometimes removed from the public record, leaving no trace that the lawsuit ever existed. THE problem begins anew when someone else is injured by a product that was involved in a previous lawsuit in which the records have been sealed. A lawyer may begin research, but never know (because records are sealed) that similar cases exist.This leaves the lawyer to virtually reinvent the wheel, with great difficulty and at great cost. Often, because many such cases are on a contingency basis (where lawyers are paid only if they win), lawyers will turn down cases, especially against major corporations. This is because getting information is difficult, and the lawyers may even believe erroneously that there is not a strong case.