Maybe James Dickey is to blame for penning the book and screenplay for Deliverance with its “less than favorable” portrayal of a select group of people in the deep South.  (If you haven’t seen it, brace yourself first and then rent it. You probably should view it if for no other reason than to understand the punch lines of so many of today’s comics.) 

That seminal film seems to me to be where the whole stereotype of hillbillies in the deep South crystallized. I don’t know if attorneys took to the imagery, or the reality of the attorneys’ success with juries from that region contributed to the stereotype, but this week’s news really struck me as symptomatic of fundamental issues in our courts today:  The proclivity of plaintiff’s attorneys to take Big Business to court in venues far off the beaten paths from those that Big Business calls home. 

Yesterday, Reuters ran a piece on the Google settlement in an Arkansas court over a click-fraud class action suit originated by Lane’s Gifts & Collectibles out of Texarkana, Arkansas.  In this case, the geography matches, but the fact is that the “deal aims to resolve all outstanding claims against Google for so-called ‘click fraud’ dating back to 2002.” 

Also this week, a Michigan company won a patent infringement case against a West Coast technology company in an East-Texas courtroom.  Why was it tried there? I can only presume that the plaintiff’s attorneys felt, rightly so it seems, that they’d have a better shot at a favorable outcome in that setting. 

The same story is told by Al Pacino in The Insider and in newspapers and pop culture on a recurring basis. Color me an idealist, but whatever happened to a case being judged on its own merits by a jury of peers?  When did that get swapped out for a case being judged by the most advantageous group that can be assembled by the plaintiff’s attorney with the implicit objective of leveraging the precedent for every similar case that follows? 

More important, if the phenomenon is so widespread as to be an element of popular culture, and with tort reform such a popular topic on The Hill, I can’t help but ask why this state of affairs persists.  It’s a rhetorical question, obviously, but one for which I think we’d all be better off with a resolution.

— Eric Kushner