KUFM  Commentaries
Debunk the Myths  - Facts on the Civil Justice System
KUFM has discontinued all its on air commentaries.
Most Recent Commentaries

Out of State Money In Montana Supreme Court Races, October 21, 2014
Gun Safety - Get Your Remington Repaired, September 23, 2014
Justice At RiskAugust 26, 2014
Vilification Of The Comp Claimant, July 29, 2014
Corporate ReligionJuly 1, 2014
Court Secrecy Kills, Again,  June 3, 2014
Federal Regulators – Whose Interests Do They Serve?, April 8, 2014
Civil Justice System - Protecting All Citizens, Even Hypocrites, March 11, 2014

Work Comp – You Can Help, February 11, 2014
Arbitration - Corporate Paid Umpires?, January 14, 2014

Holiday Cheer - Mandatory Arbitration Fixes? (December 17, 2013)

Supreme Court Fireworks (July 2, 2013)

What, Work Comp Rates Higher Than Promised? (August 2, 2011)
Oil, “Hot Coffee” and Independence (July 5, 2011)

Insurers Tightening Your Belt, And Picking Your Pocket (March 15, 2011) 

Return Of The Copper Collar? (October 26, 2010)
Remington Under Fire













Commentaries 2013
Holiday Cheer - Mandatory Arbitration Fixes?, December 17, 2013
Supreme Court Fireworks – July 2, 2013
Balls and Strikes? - June 4th, 2013
Is Mandatory Arbitration Fair? - May 7th, 2013
Commentaries 2012
LR 119 – Rules and Numbers March 13, 2012
Independence From Corporate Tyranny? July 3, 2012 
Defensive Medicine? July 31, 2012
Injured Patients the Cost of Rising Health Care Costs? August 28, 2012
What Corporations Want From Elections September 25, 2012 
Gun Safety - Get Your Remington Repaired October 23, 2012
Holiday Safety November 20, 2012
Corporate Assault on Our Constitutional Rights December 18, 2012

Commentaries 2011
What, Work Comp Rates Higher Than Promised? (August 2, 2011)
Oil, “Hot Coffee” and Independence (July 5, 2011)

Litigation For Future Generations (June 7, 2011)
VETO Acceptance of Medical Malpractice (May 10, 2011)

Insurers Tightening Your Belt, And Picking Your Pocket (March 15, 2011)
Work Comp Demise (February 15, 2011)

Commentaries 2010

Liberal Ninth Circuit?  (April 13, 2010)
Oil Spills: Damage Caps Don't Work (June 8, 2010)
Citizen Juries - Protecting Citizens And Congressmen (July 6, 2010)
To Preempt State Laws Or Not, That Is the Question  (August 3, 2010)
Gun Safety - Fix Your Remington  (September 28, 2010)
Return Of The Copper Collar? (October 26, 2010)
Commentaries 2009
Commentaries 2008

Delay, Deny, Defend (January 22, 2008)
Yes, Hunt Is A Trial Lawyer (February 19, 2008 )
Preempting Our Constitutional Rights (March 18, 2008)
Justice Belongs To People (April 15, 2008)

Preempting Our Safety (May 13, 2008)
Founders Wary Of Corporate Influence (June 10, 2008)


Commentaries - 2007

Holiday Safety (November 27, 2007)


Commentaries - 2006

Asbestos Corporation Bailout (January 26, 2006)
Bush Rules Serve Corporations (February 21, 2006)
Clean the Water, Save the Baby (March 21, 2006)
Law Day (April 18, 2006)
Say Yes To Montana Families, No To Insurance Industry Profits (May 16, 2006)
Why The Bottom Of The Barrel? (June 13, 2006)
Judicial Recall: Where's The Money Coming From?  (July 11, 2006)
Judicial Recall: Who's The Money From?  (August 8, 2006)
Judicial Recall: Proponents Fraud & Deceit?  (September 5, 2006)
CI-97, CI-98, and I-154: Pervasive Fraud  (October 3, 2006)
Cow Pies Wrapped in Iridescent Packages  (October 31, 2006)
Holiday Safety  (November 28, 2006)
Insurers Profit From "Tort Reform"  (December 26, 2006)


Commentaries - 2005

Safety or Secrecy? (January 25, 2005)
Medical Malpractice Sham (February 22, 2005)
Decrease Malpractice Costs? Apologize (March 22, 2005)
Montana Is Safer (April 19, 2005)
People or Corporations? (May 17, 2005)
The Insurance "Crisis" Scam (June 14, 2005)
The Importance of Juries (July 12, 2005)
McDonald's Coffee Case - What Do You Know? (August 9, 2005)
Who Best Determines Responsibility - Papers, Pundits or Jurors? (September 6, 2005)
Vioxx Verdict - It’s About Accountability (October 4, 2005)
States' Rights Conservatives? (November 1, 2005)
Holiday Safety (November 29, 2005)
Vaccine Immunity - Sleaze & Deceit in DC (December 27, 2005)


Commentaries - 2004

Corporate Class Action Immunity - Deja Vu All Over Again (January 27, 2004)
Med Mal - Rhetoric v. Facts (February 24, 2004)

HMO Profits v. American Lives (March 23, 2004)
Law Day - Civil Justice In America (April 20, 2004)
U.S. Founders - Protect People From Corporations (May 18, 2004)
Now - Protecting Corporations From People (June 15, 2004)

John Edwards - Pride In Trial Lawyers (July 13, 2004)
US Chamber Of Commerce v. Montana Courts (August 10, 2004)
Political Rhetoric v. Facts (September 7, 2004)
Corporate Gifts (October 5, 2004)
Secrecy Agreements (November 2, 2004)
Holiday Safety (November 30, 2004)
Accountability & Responsibility (December 28, 2004)


Commentaries - 2003

Tort Reforms Protect The Powerful (January 28, 2003)
Corporate Secrets v. Montanan's Lives (February 25, 2003)

Medical Malpractice (March 25, 2003)
Legilsature Bails Out Northwestern (April 22, 2003)
Supremes Gut Punitive Damages (May 20, 2003)

Insurance Industry Scams Public (June 17, 2003)

Class Action Reform - Fair Only For Corporations (July 15, 2003)
Simplify Work Comp? (August 12, 2003)
Class Actions Good For Public (September 9, 2003)

Mandatory Arbitration Bad For Public (October 7, 2003)
HMO Immunity & Impunity (November 4, 2003)
Holiday Safety (December 2, 2003)

Medical Malpractice - Insurance Reform Needed (December 30, 2003)


Commentaries - 2002

Medical Malpractice Insurance Crisis? (January 1, 2002)
Protecting Enron? (January 29, 2002)

Secrecy Kills (February 26, 2002)
Civil Justice (April 23, 2002)

Corporate Responsibility and Accountability Avoidance Program (May 21, 2002)
Mandatory Arbitration (June 18, 2002)
Senator Burns' Corporate "Kingpins" (July 16, 2002)
Those Lying Chamber Ads (September 10, 2002)

Another Work Comp Absurdity (October 8, 2002)
Products That Kill In Secret (November 5, 2002)
Holiday Safety (December 3, 2002)

Insurance Industry Scam (December 31, 2002)


Commentaries 2001

Accountability and Responsibility (January 2, 2001)
Exclusivity or Impunity? (January 30, 2001)
Corporate License to Kill (February 27, 2001)
Corporate Accountability (March 27, 2001)

WR Grace Bankrupt (April 24, 2001)
Safe Cribs? (June 19, 2001)
HMOs & Bush: Political Smoke (July 17, 2001)
Bush & HMO Profits - 1, Americans' Health - 0 (August 14, 2001)

Arbitration Is No Deal (October 9, 2001)
Trial Lawyers Care (November 6, 2001)
Holiday Safety (December 4, 2001)


 Commentaries 2000 

Trial Lawyers Did It (January 4, 2000)
Asbestos Relief Act (February 1, 2000)
Injured Workers (February 29, 2000)
Trust Juries (March 28, 2000)

Our Civil Justice System (April 25, 2000)
Health Care for Trial Lawyers? (May 23, 2000)
Work Comp Dividends? (June 20, 2000)
Bound by Arbitration (July 18, 2000)

Assault on Juries (August 15, 2000)
Deja Vu All Over Again (September 13, 2000)
Protecting Firestone & Ford (October 10, 2000)
Shame on Remington (November 7, 2000)
Safe Gift Giving (December 5, 2000)


Commentaries 1999

The Price of Health Care? (January 5, 1999)
Immunity for Everyone (February 2, 1999)

Accountability and Responsibility (March 2, 1999)
Insurer Accountability and Responsibility (March 30, 1999)
Y2K: Irresponsibility or Accountability? (April 27, 1999)

Fact Not Fiction (May 25, 1999)

The Best Justice System (June 22, 1999)
HMO Profits Over Patient Protection (July 20, 1999)
Montana's Injured Workers (August 17, 1999)
Good Comes From Tragedy (September 14, 1999)

Protecting Patients In Our Courts (October 12, 1999)
Responsibility & Accountability? (November 9, 1999)
The Patient Bill of Rights - It's Only Fair (December 7, 1999)


 Commentaries 1997-98 

Veterans' Day: We Won't Forget Our Debts (November 11, 1997)
The Miracle of Managed Care: A Fable for Our Times (December 9, 1997)
Chamber of Commerce: Bearing Gifts For You? (January 6, 1998)

"... The Whole Nation Is Degraded ..." (February 3, 1998)
The More Things Change, The More They Stay The Same (March 3, 1998 )

Managed Care's April Fools (March 31, 1998)
Tobacco Companies: "Poor Babies" (April 28, 1998)
Responsible Legislation to Curb HMO Abuses (May 26, 1998)

Injured Workers Betrayed By Workers' Compenstion System (July 21, 1998)
People Over Profits (August 18, 1998)
Auto No-fault Is No Choice (September 15, 1998)
Good Hands, Good Neighbors? (October 13, 1998)

Get The Facts On Tort Reform (November 10, 1998)
Toy Safety (December 8, 1998)




Supreme Court Fireworks – July 2, 2013


With so many things happening in Montana and across the country affecting the civil justice system, I had a hard time picking a topic for tonight. The U.S. Supreme Court ended it's term in June with a bang. There was the Windsor case striking down the federal Defense of Marriage Act, and the Perry case that the Court sidestepped but in effect allowed the nullification of California's Propisition. The Court rejected a key provision of the Voting Rights Act in Shelby County, and sidestepped a decision on affirmative action, with indications that the law will change to strictly scrutinize racial classifications. Then there was the Bartlett case in which the Court expanded protections for the corporate makers of generic drugs. Let me see if I can tie them all together.

Thursday is Independence Day – the day we celebrate our declaration of independence from England. After securing independence, our founders set out to form a governing structure. They tried governing our new country under the Articles of Confederation, but found that a system of strong state powers and relatively weaker federal powers didn't work well. In 1787 our Constitution was adopted, to be ratified by the states in 1789 with the assurance that a Bill of Rights would be proosed and ratifed, and those first ten amendments were ratified in 1791.

One of our core constituional rights is embodied in the Fifth Amendment, which provides in part that no person shall be “deprived of life, liberty, or property, without due process of law” - often referred to as the Due Process clause. This amendment was in reaction to abuses by the sovereign.

In the Windsor case the divided Court found that a federal law that denied federal benefits to same sex persons married legally under a state's laws violated the Fifth Amendment. The majority in effect found the federal law to be an abuse of power by the sovereign.

When we bestow near diety status on the genius of our founding fathers, we tend to forget that in the Constitution black slaves were counted as three fifths of a person, of course that was only for tax and Congessional representation purposes. There was no need to protect slaves from being denied the right to vote – slaves couldn't vote.

In the voting rights case, upholding States' powers under the Tenth Amendment over individuals' rights to be free from racial discrimination under the Fifteenth Amendment, the majority of the Court decided 180 plus years of institutional racism has been eradicated in the past 50 years. As Justice Ginsburg noted in her dissent, the majority throwing out the preclearance part of the law “when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Most of us remember our grievances that led to the American Revolution as being against King George.  What most of us don't remember, or never learned, was that many of our grievances were with King George carrying out the bidding of the few corporations that dominated colonial America, like the East India Company – the original tea partiers threw its tea into Boston Harbor. In 1776 we declared our independence not only from British rule, but also from the corporations of England that dominated and controlled us, and extracted wealth from us.

Another of the rights insisted upon in order to assure passage of our constitution was the right to trial by jury in civil matters – the Seventh Amendment. It is the means by which we hold our government accountable. It also ensures that all men and women are entitled to a redress for wrongs done by others, including corporations. As John Adams once said about jury trials, "We have not envisioned a better fortification from being ridden like horses, fleeced like sheep, worked like cattle and fed like hounds."

There is more than a bit of irony that as we celebrate our independence this year, we are experiencing ever more of the corporate dominance that we rebelled against at our nation's birth. Our country's founders retained a healthy fear of the threats posed by corporate power and sparingly granted corporations a limited business role. As Thomas Jefferson said, "I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country."

The moneyed interests of corporate power have been chafing at the reigns of the the civil justice system and the right to trial by jury since our country's inception. In the Barlett case corporate power won, again. The Court held that state laws could not be used to hold a generic drug manufacturer responsible for the harms its products cause. What harm? “Sixty to sixty-five percent of the surface of Karen Barlett's body deteriorated, was burned off, or turned into an open wound" due to the drug - too bad, too sad according to the Court's majority.

It seems the Windsor and Perry cases are exceptions to this Court's rule that government and corporate might rules.

It's hot and dry out there, please heed all fire warnings and have a safe and happy Fourth!

This is Al Smith for the Montana Trial Lawyers Association.



June 4th, 2013


US Supreme Court's Balls and Strikes Count

Last month I spoke about how mandatory, pre-dispute arbitration clauses in consumer and employment contracts can never be fair, because the parties do not have equal bargaining power, equal experience in arbitration, equal ability to understand contract language, particularly the ramifications of the rights being waived, and an equal ability to insist on clauses being included or excluded in the contract.


I gave examples of how the U.S. Supreme Court has failed to uphold an individual's right, under the 7th Amendment, to have civil disputes decided by a jury, instead it has sided time and again with corporations in upholding mandatory pre-dispute arbitration provisions. These included cases where state courts and U.S. Circuit courts have upheld consumers' rights, and the U.S. Supreme Court has sided with the corporation, leaving consumers with no recourse, and giving corporations an arbitration free pass – no accountability, unless someone is willing to spend more money than they could ever hope to recover.


The idea that the U.S. Supreme Court would side with corporate interests over individual's constitutional rights comes as no surprise to many of us who monitor Supreme Court decisions. But, if you are intellectually honest, you have to always question whether your conclusions are based upon your biased perceptions, or whether they are indeed based on facts.


So, are there any facts to back up the conclusion of many that the U.S. Supreme Court is, in political parlance, “business friendly?” Many of us perceive the court under Chief Justice Roberts, as allowing corporations to spend freely in elections, protecting corporations from class actions and human rights suits, and favoring arbitration over actions brought under the 7th Amendment as the way to resolve many disputes. For many, the perception is that these rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.

A study published in April in The Minnesota Law Review, takes a comprehensive look at some 2,000 decisions from 1946 to 2011. The study relied on a simple formula – it looked at cases with a business on one side and an individual, or group of individuals, on the other side. A vote for the business was counted as a pro-business vote.


The 36 justices who have served on the court the past 65 years were ranked by the proportion of their pro-business votes. Current Justices Roberts, Scalia, Thomas, Kennedy, and Alito were in the top 10, with Roberts and Alito the two justices most likely to vote in favor of business interests of all those 36 justices.

Part of the reason for this, the study concluded, is that the Roberts Court is hearing more cases where the business lost in the lower court, and reversing more. Unlike the Montana Supreme Court that hears every case where at least one of the parties requests an appeal, the U.S. Supreme Court gets to choose which appeals it hears, and it chooses the business cases it wants to hear. The Roberts Court is more likely to reverse a case when the lower court decision was anti-business. Along those lines, the Court is also more likely to affirm cases in which the lower court decision was pro-business.


The “business friendly” bent of the Roberts court is also found in looking at amicus, or friend-of-the-court, briefs filed in support of petitioners asking for Supreme Court review. SCOTUS BLOG contributor Adam Chandler found that in the past three years, pro-business groups accounted for more than 75% of the top 16 groups filing amicus briefs. The U.S. Chamber of Commerce was tops, and the most successful filer. Parties asking the U.S. Supreme Court to review their cases get their wish 1% of the time. Parties supported by a Chamber amicus brief asking for review get their wish 32% of the time. That's right, businesses with Chamber amicus support are 32 times more likely to get their case heard by the U.S. Supreme Court.

Those of you that remember Chief Justice Roberts' Senate confirmation hearing in 2005 may also remember that several times he likened the role of a justice to that of a baseball umpire. He closed with “And I will remember that it's my job to call balls and strikes and not to pitch or bat.” Applying these recent factual compilations to a baseball analogy, it's easy to see why you would want to be on the U.S. Chamber team when Roberts is the umpire – you get strikes called in your favor 32% of the time, as opposed to the league average of 1%.


There is some hope with ending abusive mandatory arbitration provisions, and restoring Americans’ 7th Amendment rights. U.S. Senator Al Franken and U.S. Representative Hank Johnson have introduced the Arbitration Fairness Act of 2013. The Act would: eliminate forced arbitration in employment, consumer, civil rights, and anti-trust cases; ensure that the decision to arbitrate is truly voluntary; and, would restore fundamental rights created by state and federal constitutions and laws.

Links to the Act, and to the studies referenced above can be found in this commentary posted in the Commentary section of the mtpr.org homepage, and at our website – monttla.com. Five minutes is a short time for these issues, please check them out fully for yourself, if you're so inclined.


This is Al Smith for the Montana Trial Lawyers Association.

Minnesota Law Review Study


NYT Article - Corporations Find a Friend in the Supreme Court


Review of Amicus Filings


Roberts Confirmation Statement

Arbitration Fairness Act of 2013 (AFA) [S.878 / H.R.1844]






For Facts on the Civil Justice System