WDC Makes a Difference

WDC Journal Edition: Summer 2010
By: Jim Hough, The Hamilton Consulting Group

One of the primary reasons for the existence of any trade or professional association is the desire to impact public policy decisions which affect the manner and/or profitability of carrying on that trade or profession. WDC (or CTCW, as it was previously known) has always viewed and treated its legislative involvement as a top priority. The right to lobby is a constitutional right “to petition the Government.” That right is also a practical necessity, required to ensure that our legislative processes remain representative and consider the respective positions of competing interests.

The principle that guides WDC’s involvement in the public policy arena is the desire to ensure fairness in our civil justice system. This means a system that is fair to defendants as well as to plaintiffs. WDC members respect the role and professional skills of most plaintiff lawyers. Our public battles involve making sure that the “rules of the game” are balanced and treat all parties equally and fairly.

The involvement of WDC in the 2009-10 legislative session was a superb example of “we can and do make a difference.”

Immediately following the general election in November 2008, the President of WAJ (formerly WATL) sent an e-mail to members saying “we won.” The legislature would now be under the control of two houses and a governor who were sympathetic to plaintiff lawyers and their agenda.

With odds heavily stacked in their favor, plaintiff lawyers requested numerous changes to Wisconsin law which would favor their ability to be successful in their pursuit of damages on behalf of their clients. These changes included returning joint and several liability to pre-1995 law where a defendant as little as 1% at fault could pay 100% of damages—a system our members argued over 15years ago amounted, in many instances, to legal extortion.

This proposed change and changes regarding combined fault and mandating jury instructions on the results of the percentage of negligence findings were remarkably (not a friendly description) included in the budget bill by a plaintiff lawyer-friendly governor. Not only were the proposals bad public policy, but they were buried in the budget in hopes of avoiding an open public debate on the demerits of the proposals.

WDC and others in the business and professional communities engaged in an incredible, and very credible, effort that ultimately saw these measures defeated. The battle was not over after the budget as numerous other bills supported by the plaintiffs’ bar surfaced over the course of the session and were likewise turned back. (Please see “Legislative Review” by Andy Cook in this issue for detail on the specific proposals.)

The WDC Board has the responsibility of overseeing and coordinating the policy-making function of the entire organization. WDC is registered with the State Ethics Board as a Principle which employs The Hamilton Consulting Group as the lobbying arm for the association. The WDC Board committed its time and resources and that of the Hamilton Group to actively and vigorously oppose those initiatives which would have tipped the balance in favor of more and higher damage awards and harmed our civil justice system.

WDC officers, Board members, Past-Presidents and other members took time from busy schedules to testify before, often unfriendly, legislative committees. The testimony and expertise demonstrated by our members provided a critical counter-balance to the efforts of the plaintiffs’ bar and supplemented and complemented the ongoing efforts of Andy Cook, Bob Fassbender and Andy Engel of Hamilton and those of other allies, primarily business and professional association members of the Wisconsin Civil Justice Council (WCJC).

As in most competitive team sports, there are times to play offense and times to play “aggressive” defense. This session was all about defense, which in several instances involved preserving (joint and several liability and access to medical records) that were achieved on offense in 1995 when the efforts of WDC (CTCW) and others achieved significant reforms in restoring fairness to our civil justice system.

[WDC (CTCW) was also instrumental in securing the passage of several pieces of significant legislation in 2006—all of which were, unfortunately, vetoed by Governor Doyle. These included adoption of Daubert standards, changes to “risk contribution” and major changes to product liability, a long-time WDC initiative.]

As our members well know, however, success often results from defense. The success of this session, as well as the offensive successes in 1995 and other years, confirms the ability of WDC to favorably impact public policy and ensure that our civil justice system treats defendants, as well as plaintiffs, equally and fairly.

Perhaps in the 2011 legislative session, WDC can once again spend some time on offense and pursue the changes adopted, but vetoed, in 2006 as well seeking long overdue changes to the current one-sided nature of Wisconsin’s default judgment rules.

Jim Hough has been government relations advisor to WDC & CTCW since 1985. He also served as part-time Executive Director of CTCW from 1985 to 2001. Semi-retired, Jim remains affiliated with the Hamilton Consulting Group as a consultant on civil justice and economic development issues.