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Delegate Overington: Consistently Wrong on Judicial Hellhole

Posted on May 11, 2015 at 4:50 PM

"Foolish Consistency is the hobgoblin of little minds..." said Ralph Waldo Emerson.  When I think of Delegate Overington, the Republican delegate representing the 62 District of West Virginia, I often think of Mr. Emerson and his famous discourse on consistency.  Delegate Overington, who is a very nice man, I'm sure, is the longest serving legislator in the West Virginia House of Delegates, having served, I believe, 29 years.  During those 29 years, Delegate Overington has shown a remarkably consistent support for:  reinstating the death penalty in West Virginia, for reforming the civil justice system to benefit corporations and hurt individual West Virginians, and for searching for the largest tree in his District.

I will not chide Delegate Overingon for his annual large tree contest, for an interest in all things arboreal is probably a good thing, particularly in a Republican delegate.  For his consistent support of reinstating the death penalty in West Virginia, however, I can only shake my head.  West Virginia is presently facing a 195 million dollar budget shortfall, and yet, during the 2015 legislative session, Delegate Overington, for the 29th year in a row, saw fit to introduce his bill to reinstate the death penalty.  The fact that a death penalty prosecution costs, on average, 1 million dollars more than a criminal prosecution where life imprisonment is the maximum penalty probably did not figure into Delegate Overington's consistent  support for this bill.  In the past, Delegate Overington has explained that his support for reinstating the death penalty springs from his fear that because most of the states surrounding West Virginia have the death penalty, killers would be more likely to visit West Virginia:  sort of like a tourist attraction for the killer on the go.  I guess the fact that West Virginia consistently has a lower homicide rate than its neighbors also did not figure into Delegate Overington's calculus.

While I am confused by Delegate Overington's blood thirsty support for the death penalty from such a nice, well mannered man, it is his efforts to tweak the civil justice system to favor the corporate wrongdoer that has caused me to write the present blog post.  Those efforts are encapsulated in Delegate Overington's use of the objectionable phrase:  "judicial hellhole" to describe West Virginia.  To be sure, Delegate Overington has used this phrase in the past, but his latest offense against the people of West Virginia occurred in his Delegate John Overington Report ("Report"), published in The Journal on Sunday, May 10, 2015.  In the Report, Delegate Overington explains that his number one priority is "to create a jobs friendly environment in West Virginia", and explains further that he intends on doing that by "ending our national status as a 'judicial hellhole.'"

The term judicial hellhole is not a clever turn of phrase coined by Delegate Overington, but rather is one that was developed, and has been used by a group called the American Tort Reform Association ("ATRA") since 2002.  ATRA claims that it is a non-profit group organized solely for the purpose of illuminating for the American public the seamy truth about our civil justice system.  Like the phrase, judicial hellhole, ATRA's purpose is, simply put, a lie.  ATRA is funded by major corporate interests from across America, including representatives of the pharmaceutical, auto, insurance, and manufacturing industries, all with a profit motive for avoiding liability for wrongdoing.  Each year, since 2002, ATRA has published its Judicial Hellhole Report, and has frequently named West Virginia as being one of the worst offenders.  Neutral scholars, however, have criticized ATRA's statistical, and fact gathering methodology, and reporting, and have compared it to the big lie, or the grosse luge, used by Adolf Hitler during World War II.

In his smallish book, Mein Kampf, Hitler first identified the phrase, the big lie, and explained that if a reporter told a big enough lie, and repeated it often enough, it would take on the guise and aspect of the truth.  Psychologists know of this phenomenon, and call it the social learning theory.  The public is told that there is a litigation explosion, that the greedy trial lawyers are raping the nation, that run away juries are destroying the fabric of society and driving corporate employers out of business.  (None of these things, by the way, are true.)  These lies are consistently repeated by ATRA, and people like Delegate Overington, and soon the public has internalized the lies and believes them to be true.  Professor Elizabeth G. Thornberg of Southern Methodist University explained that ATRA has no desire to paint a realistic picture of the civil justice system, but rather wants to induce a panic amongst the legislators, the judges and the public so that laws, and cases favor corporate defendants.  

In order for social learning to work, the lies must be repeated over and over again.  In this instance, Delegate Overington, who claims to be a champion for the people of West Virginia, is the one doing the heavy lifting:  repeating the lie:  judicial hellhole.  If a place is said to be a judicial hellhole often enough, in the eyes of a corporate employer it becomes just that:  a judicial hellhole.  I can't imagine that there are many corporate employers who would be interested in relocating to such a locale.  Why is Delegate Overinton publishing this lie?  Why does he want corporate employers to think that the business environment in West Virginia is toxic, when, in fact, civil filings, and appeals are at their lowest level in years, jury awards are modest, punitive damage awards are rare, and, based upon unvarnished facts, the civil justice system in West Virginia treats corporate defendents fairly.  I suspect the answer lies in Emerson's observation about "foolish consistency" and "little minds".  Many years ago, Delegate Overington accepted from ATRA the lie that the civil justice system was broken and needed fixing.  He didn't critically examine that lie because it fit into his limited world view.  He simply accepted it, and began to repeat it over and over.  Today, for him, it is probably perceived as the truth.  So, for his 29th year in a row, Delegate Overington has continued to support corporate defendants at the expense of the average West Virginian.  Given this foolishly consistent betrayal of West Virginia, I think that it is time for Delegate Overington, and any other delegate who repeats the lie, judicial hellhole, to resign and concentrate on, perhaps, finding their own biggest tree.   

Categories: The law

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1 Comment

Reply Mary
6:33 PM on May 11, 2015 
Hey Michael, I thought of a new interstate signage slogan: "West Virginia--we support both friend AND fiend--All are welcome!"
I can't say I know much about the litigation situation in our state but this was an interesting read.