ALBUQUERQUE (Legal Newsline) - Rising costs of workers' compensation insurance and the drain on state resources created by the 2010 Whistleblower Protection Act are among reasons why New Mexico's legal environment is ranked among the worst states in the nation, according to recent research.
A Harris Poll survey, which examined the overall handling of tort and contract litigation, enforcement of meaningful venue requirements, rules for discovery and the impartiality and competence of judges, showed that the state has dropped from 37th to 45th in a nationwide ranking of states' liability systems.
New Mexico Association of Commerce and Industry (NMACI) invited business leaders to voice concerns about the state's poor showing in the survey at a forum last week.
Quinn Lopez, vice president and general counsel for New Mexico Mutual, said the state's judiciary is often biased in favor of plaintiffs and has shown an unwillingness to sets limits on assigned damages. The consequences of this trend, he said, are driving up costs of workers' compensation insurance rates across the state.
Steve Kopelman, executive director of New Mexico Association of Counties, added that the Whistleblower Protection Act of 2010, which was written to protect employees who report improper behavior from reprisal, is being exploited with frivolous litigation.
The flaw in the whistleblower legislation is that several concepts contained in it, including what qualifies as improper behavior and who the employee is required to report to, are not clearly defined, he said. This allows disgruntled employees who are terminated, even those let go with legitimate cause, to bring civil suits against their employers.
Kopelman said this trend has placed a heavy burden on New Mexico county government agencies in particular, a strain which is then passed on to tax payers and is a drain on resources.
Defense attorney Deborah Manns of Albuquerque, who represents health care providers in personal injury and wrongful death litigation, indicated that current venue law in New Mexico is very generous - lawyers can have a case tried in the jurisdiction where an accident occurred, the jurisdiction where the victim lives and in the case of a wrongful death suit the home of the representative bringing the complaint on the victim's behalf.
Thursday's forum was led by a representative of the U.S. Chamber Institute for Legal Reform, Harold Kim, who suggested that the state could rectify problems with its tort liability system by instituting reforms to stop what he called junk science from being admitted into the courtrooms, by applying caps to damage judgments and limiting the ability for litigators to bend the rules to select favorable venues.
Tom Briones, owner of Briones Business Law Consulting in Albuquerque, said that from the perspective of a lawyer working with the local business community the biggest obstacle he and his clients typically have is with the slow pace that lawsuits travel through the state's court system.
He cited a wrongful death case he and his firm were working on that had begun in 2015 and was not expected to go to trial until 2018.
“Right now the state simply doesn't have enough judges and staff to handle the number of civil cases before the system,” Briones said,
He said the driving force behind the overburdening of the state's legal system is that New Mexico's current rules for selecting venues makes it very easy for lawyers to get cases tried in jurisdictions that they perceive as being beneficial to them.
Briones added that cases are heavily focused in areas where either the lawyer has a positive relationship with judges or where they are perceived as being more friendly to civil suits. This trend has grown to the point where lawyers are moving their cases from other states to New Mexico, he said.
“New Mexico's poor ranking has created an effect like there has been a dip in the water level and now it is flowing in from all of the nearby regions including Texas and Colorado," he said.