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.
``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.
``If you don't allow different lawyers for individual plaintiffs who are facing the same corporate behemoth to share their work, it makes it difficult for them to arrive at the truth, which is the goal of a lawsuit,'' says Robert Stolzberg, chairman of the Boston Bar Association's aviation litigation committee.
Attorneys at the trial lawyers' meeting said one way to get around the order is to disseminate information quickly, before a secrecy order can be obtained. Once the information is already out, they say, there is little use attempting to obtain one. The ATLA has an exchange group that shares information on such cases.
But often clients faced with a large settlement offer are simply not concerned about the public's right to know, lawyers say. In many cases they just want the money, and are happy to keep silent. The confidentiality orders end up driving a wedge between the client and the lawyer, who may feel a moral responsibility to help other lawyers win similar cases.
``I see real ethical problems for defense lawyers trying to bind another lawyer from taking future cases of any sort,'' says Mr. Stolzberg. ``It prevents another claimant from getting the right attorney for the job.''
A few states are starting to recognize that confidentiality orders are not always in society's best interest. A Florida law requires judges to receive testimony that convinces them that sealing a case is in the best interests of society. The alternative would be to seal some documents, but not the whole trial.
A Virginia law says the court must allow information in a case file to be given to public regulatory bodies for safety reasons, or to other claimants, even if a judge has sealed a product-liability file from general public scrutiny.
Of course, the orders sometimes protect corporate trade secrets. ``There is a legitimate desire to protect that from public scrutiny and just because someone sues, [a company] should not be forced to relinquish that secret,'' Stolzberg says. There are ways to carefully craft a confidentiality order to protect private information while keeping open other pertinent information, he says.
Floyd Abrams, partner for the New York firm of Cahill, Gordon & Reindel, has obtained secrecy orders for some corporate defendants.
`` A lot of lawsuits pose enormous threats to entire industries,'' he says. ``In cases like [those] a settling defendant doesn't want to run the risk of of a nearly identical suit being brought on the same facts.''
He disagrees with the ATLA resolution requesting judges not to sign secrecy orders as a matter of rote, saying some cases which should be settled might not be without such an order.
``It's a very difficult situation that any judge is put in,'' Mr. Abrams says. ``The judge has to engage in delicate balancing to take account of the interests of the parties in a particular case before him while at the same time considering the broader public's interest at stake.''