CHICAGO TRIBUNE COMPANY
Spurred in part by recent revelations about Roman Catholic priests and sexual abuse, lawyers and some federal judges are pushing to make it harder to seal records in civil court cases - a practice often employed in product liability suits.
Proponents argue that greater openness will prevent further harm from products or individuals by making it easier for the public to be aware of problems such as those involving faulty tires that produced earlier lawsuits. "Once that [record] can't be secret, people won't buy Exployers with Firestone [tires] and people won't go to Father Smith's church," said Richard Zitrin, a San Francisco attorney and a professor of legal ethics who is leading a drive to change how court records are handled.
In recent years, high-profile suits involving asbestos, tobacco, breast implants and prescription drugs have led to juries making huge damage awards to plaintiffs. As a result, experts noted, companies have become inclined to offer settlements.
As part of such a deal, plaintiffs are frequently required to agree to have all records sealed. In extreme cases plaintiffs even agree to cloak their names and the name of the company involved so that the record reads "Sealed vs. Sealed."
In the past, companies have urged judges to seal records by arguing that public disclosure would expose trade secrets and other competitive information. Although none of the reform efforts would dispute a company's right to guard legitimate trade secrets, proponents of change oppose deals to hide liability, whether to protect a product, a person or an institution.
Gregory Breedlove, a trial lawyer in Mobile, Ala., said secret agreements put clients and their attorneys in a difficult position. He said a client can be forced to decide between a beneficial monetary settlement and the knowledge that by agreeing to keep records private, others in a similar situation may not get important information.
"It is morally reprehensible," Breedlove said.
The drive for change has been taken up by the American Trial Lawyers Association, which has noted early indications of shifting policies.
"We are seeing more interest in blocking this [sealing] process," said Mary Alexander, president of the lawyers group.
This month all 10 federal judges in South Carolina voted to ban secret settlements, saying the courts had become complicit in blocking public access to information about faulty products, incompetent physicians and priests who engaged in sexually abusive acts.
Several states - including Texas, Florida and Michigan - have effective "sunshine laws," as these are sometimes known, and efforts are under way in several others to establish new rules. Sen. Herb Kohl (D-Wis.) has worked toward a federal sunshine law.
For the last eight years Kohl has sponsored legislation that would require federal judges to decide whether to seal files and records. The judge would be required to weigh the harm or good of sealing the records.
That same idea is behind legislation in the Illinois House of Representatives drafted by Rep. James Brosnahan (D-Evergreen Park), who wants to strike a balance between a defendant's right to keep secrets and the public's right to valuable information.
A bill Brosnahan drafted in 1999 passed a House vote but was not taken up in the Republican-dominated Senate, he added. He intends to introduce another bill next year.
While San Francisco attorney Zitrin supports legislative efforts, he says that does not go far enough.
"Only about 3 percent of these cases actually get filed in court," he said.
As a result he wants to see the American Bar Association issue a rule that would keep member attorneys from entering into sealed agreements.
"It has to relate to unfiled suits, or else it won't be worth anything," he said.
The ABA has no official position on sealing court records, said spokesman Al Manning.
Lawyers Involved: