A recent item on the calendar for the West Virginia Supreme Court drew what, on first glance, seemed like an inordinate amount of attention.
Fifteen individuals or groups filed comments, while 13 lawyers signed up to argue on the matter.
Arguments started at 1 p.m. and lasted about 2 hours.
A high-profile murder? Nope. An eight-figure verdict in a civil suit? Nice try, but no.
The item was titled “Proposed Amendments to the West Virginia Rules of Civil Procedure,” and generated all the interest because of the potential it has to change plenty in the civil arena of Mountain State law.
The process didn’t just pop up overnight. In fact, it dates back to before the pandemic, beginning in 2019 with the state Supreme Court establishing a committee to review the state’s Rules of Civil Procedure. If the changes are adopted as they are or in similar fashion, it would mark the first major overhaul of the Rules of Civil Procedure in 25 years.
The committee submitted proposed amendments to the court on Aug. 13, 2021; the amendments then went out for a 120-day public comment period that ended Oct. 13.
The court then on March 2 scheduled the arguments, which were held March 29.
Opinions show plenty of division on the issue.
Tom Dyer, longtime Clarksburg attorney, told WV News that the proposed changes “are a copy-and-paste of the federal rules that are not appropriate for West Virginia state civil cases. No problem was identified to be solved with these rules changes except to make them more in line with the federal rules. There are many differences between state and federal court civil cases, and that’s why the state rules should be different.”
“The money threshold is much lower in state cases, and the state courts handle nearly 20 times the number of civil cases than the federal courts. The state court budgets are lower as well. The rules changes are made for a problem that doesn’t exist and will create negative unintended consequences for West Virginia citizens pursuing a civil action. Further, no exploration of the cost burden this would impose on the system was ever done built the rules committee,” Dyer said.
Longtime Morgantown lawyer Dino Colombo sees no need to change the rules.
“This is just another attempt at making it more difficult for the ordinary person to get justice. The changes proposed to the WV Rules of Civil Procedure will make it more expensive, more difficult and slow the process down for a person to get their case resolved in civil court. On top of that, if the new rules are implemented it will do away with or complicate at least 75 years of WV Supreme Court decisions which have interpreted our Rules of Civil Procedure,” he told WV News.
“For example, one of the proposed changes would require the parties in a civil case to get written reports from expert witnesses. Currently, written expert reports are not necessary. By requiring written reports a person who has been injured will now have to spend thousands of dollars to get written reports from engineers, doctors, accident reconstructionists, etc. as opposed to the lawyer just summarizing the opinions. This increases the difficulty and expense greatly for the ordinary person making it more difficult and time consuming for them to get their case to trial,” Colombo said.
“At the end of the day, this is just an attempt by the insurance companies to just slow the process down, drag it out and make it almost cost prohibitive for the ordinary person to bring a civil case. Plain and simple, this is about the insurance companies trying to make it more difficult for the ordinary person,” Colombo said. “On top of the fact, these proposed new rules are effectively a solution looking for a problem. In other words, the lawyers and judges throughout WV are very comfortable and satisfied with the Rules of Civil Procedure and are familiar with how the process works. I am aware of no experienced lawyer or judge who has any significant problems or complaints with our current Rules of Civil Procedure.”
A comment letter filed with the Supreme Court by Danielle Waltz of Jackson Kelly in Charleston, and Mark Behrens of Shook, Hardy & Bacon in Washington, represented the interests of a slew of organizations and groups: The West Virginia Chamber of Commerce, West Virginia Trucking Association, the Federation of Defense & Corporate Counsel, the U.S. Chamber Institute for Legal Reform, the Product Liability Advisory Council Inc., the American Property Casualty Insurance Association, the Coalition for Litigation Justice Inc., the Washington Legal Foundation, the American Trucking Association, the Pharmaceutical Research and Manufacturers of America, the West Virginia Manufacturers Association, the International Association of Defense Counsel, the Association of Defense Trial Attorneys, the American Tort Reform Association, the National Federal of Independent Business, the National Association of Mutual Insurance Companies, the Alliance for Automotive Innovation and the AdvaMed-Advanced Medical Technology Association.
“The undersigned are leading national organizations representing lawyers who primarily represent civil defendants,” they wrote. “Our members include numerous West Virginia defense attorneys. We are also leading West Virginia and national business, civil justice and public policy organizations with members that included countless West Virginia employers and insurers.
“The proposed amendments will more closely align the West Virginia Rules of Civil Procedure with the Federal Rules of Civil Procedures (FRCP). The new rules generally replace the existing civil rules in West Virginia with language from the FRCP. This will promote harmony in West Virginia’s federal and state courts and reduce incentives to forum shop. We applaud the efforts on the proposed amendments sent out for comment,” they wrote before suggesting a handful of recommendations.
The Mountain State Bar Association, one of the oldest minority bar associations in the nation and a group that benefits African American attorneys, wrote to oppose the proposed changes.
“A vital part of MSBA’s century-old mission is to improve access to justice for all, which is the primary reason for this response,” the association wrote.
The association expressed concerns that “increasing costs of litigation, eliminating more lenient timing rules, and making robust expert reports a repeated requirement will only exacerbate already-existing access-to-justice issues. Even more troubling, no exploration of the impact of these changes on minorities, or the poor, has been made,” the association wrote. “Indeed, the committee making these suggestions contained no diversity whatsoever.”
The association wants the rules rejected “because of the serious potential of these changes to create barriers harming access to justice.”
Meanwhile, Jill Cranston Rice, president of the West Virginia Insurance Federation, wrote that on Rule 26, involving discovery — a legal term for sharing of evidence and witnesses — the Insurance Federation “encourages the Court to consider adopting amendments that closely align with the Federal Rules of Civil Procedure.”
“Specifically, the WVIF respectfully urges the Court to consider that discovery is time-consuming and expensive, and settlements are now driven by litigation costs, not merit. This underscores the need for proportionality and will help align West Virginia’s Rules with Federal Rules and the majority of states. Our Rules should reflect what is happening and influencing civil cases, and cases should be determined based on their merit,” Cranston Rice wrote.
Jed Nolan, director of the WVU College of Law Veterans Advocacy Law Clinic, asked that the amendments “not be enacted” due to what he sees as a potential to “create barriers to redress for our veterans, who have sacrificed so much for our freedoms in the first instance.”
There already aren’t enough lawyers to represent the interests of West Virginia’s more than 167 military veterans, Nolan contends.
“Narrowing discovery, increasing the costs of litigation, and creating new objections to withhold documents are barriers that harm an already underserved veteran community,” Nolan wrote.
“In the proposed amendments, the timing rules are less lenient, the pleading rules are less forgiving, and the discovery rules constrain veterans’ abilities to reveal harms and bring claims. Our concern is that this will lead to even fewer advocates who are able to serve West Virginia veterans.”
The West Virginia Association of Justice, meanwhile, “does not believe that an overhaul of our current Rules of Civil Procedure is necessary and, as proposed, these changes may very well be counterproductive, resulting in increased costs of litigation to our citizens who can least afford it.”
It contends that changes should have been accompanied with an analysis of the cost on court budgets, court staff workload and litigants.
Meanwhile, Legal Aid of West Virginia sees some parts in the proposed changes that would help low-income West Virginians, and others that would be detrimental, according to comments from its representatives.
One change could undercut funding for the nonprofit, according to its executive director, Adrienne Worthy. Since a rule was amended in 2017, 50% of leftover funds from class actions goes to Legal Aid of West Virginia, and the other 50% can go to West Virginia nonprofits; schools within state universities or colleges; or foundations that support programs that will benefit the class. The proposed change leaves Legal Aid and the others as potential recipients, but doesn’t mandate that Legal Aid receive a 50% share.
Worthy said while Legal Aid of West Virginia can’t count on the funding as part of its budget, it has received on average $416,000 per year over the last five years through this process. That’s been “incredibly meaningful,” Worthy wrote, and “critical to our services. These funds generally have no onerous rules or specific requirements like our grants, which means that they can cushion the impact when a grant expires, or they act as a bridge when we have a new grant on the horizon. They have supported pilot projects and time-limited services and they have also helped us build a modest reserve so that we know meet non-profit best practice guidelines.”
Martinsburg attorney Alex Tsiatsos wrote to “oppose these changes because they seek to convert our state rules into the federal rules. But there is no reason for this. There is nothing wrong with West Virginia’s current rules. No one has identified any problems that need to be fixed.”
Tsiatsos contends “the vast majority of civil litigation” in West Virginia occurs in state circuit courts. Lawyers are familiar with state rules, and there’s even been “a significant amount of valuable commentary,” including “the time honored ‘Litigation Handbook on West Virginia Rules of Civil Procedure’ …”
Tsiatsos said he represents an approximately equal number of civil plaintiffs and defendants, and that he’s been involved in several federal civil cases. He contends defendants want to get cases removed to federal court because the rules help make it more expensive and difficult.’
Attorney James Kauffelt of Kauffelt & Kauffelt in Charleston wrote he isn’t “aware of any outcry among the members of the Bar to make the West Virginia Rules more like the Federal Rules. … The Court should evaluate the proposed Rules in light of this timeless maxim: ‘If it ain’t broke, don’t fix it.’”
