I am deeply honored to be asked to serve as President of the North Carolina Academy of Trial Lawyers (NCATL). The North Carolina Academy of Trial Lawyers (NCATL) embodies the highest ideals of our profession: protecting individual rights; providing continuing education and mutual support; and serving our communities. The strength of the North Carolina Academy of Trial Lawyers (NCATL) lies in its commitment to these ideals, and the efforts of those who have devoted themselves to building and sustaining this great organization.

It is a particular honor to follow Jim Ferguson as President of the North Carolina Academy of Trial Lawyers (NCATL). A year ago, Fergie asked us to join him in saying "I believe we can fly." He has taken us to new heights. On an issue of paramount importance - the death penalty - we have come so much farther than anyone else thought possible. A year ago, who would have thought that we would see such a dramatic change in public attitudes about capital punishment? Who would have thought that 13 cities in North Carolina would pass resolutions supporting a moratorium on the death penalty? Who would have thought that our Superior Court judges would have the courage to put a halt to planned executions? Who would have thought that the United States Supreme Court would be considering a North Carolina case that has the potential of ending the barbarism of executing the mentally retarded?

I want to make a pledge to Fergie and to all Academy members: during my year as President, we will continue to dedicate the energy and resources of the North Carolina Academy of Trial Lawyers (NCATL) to ending the death penalty for the mentally retarded and enacting a moratorium on capital punishment. 

Under the leadership of Fergie and Legislative Vice President Janet Ward Black, and with lots of hard work by our members and staff and our friends in the General Assembly, this has been a year of great accomplishment on the legislative front. We reversed the Hansen decision, which jeopardized settlements in workers' compensation cases. We raised the limit on damages under the State Tort Claims Act from $150,000 to $500,000. We ended summary judgment by ambush, by requiring advance briefing of dispositive motions. We gave prosecutors the discretion not to seek the death penalty, even when aggravating circumstances are present. 

So we have accomplished a lot. But there is much more to be done. On the civil side, we need to intensify our efforts to change the law, and bring down the five great barriers to justice. 

(See box at left for the five barriers)

Five barriers to civil justice. It's time to take them down. How do we do it? We can learn a lot from the campaign against the death penalty. We may or may not win a particular battle this year. But by taking up the fight, we educate lawyers, judges, journalists, jurors and voters, and lay the groundwork for the future.

We can also learn from some of our recent victories. It was the power of Kelly Crabtree's story that moved the legislature to raise the cap on damages under the Tort Claims Act. It was the power of the stories of Lesly Jean and Ronald Cotton that revealed the flaws of our criminal justice system, and inspired new legislation giving defendants access to DNA evidence and providing more compensation for innocent people who were wrongly imprisoned. As trial lawyers, we know that a powerful story about a single person can lead us to justice. We need to draw on that wisdom in this fight for civil justice. We need to gather and tell the stories that expose the harshness and inequity of doctrines that exempt wrongdoers from responsibility, and leave their victims unprotected. 

We are in a better position than ever before to make this fight. Led by Dick Taylor and Bill Wilson, we have a seasoned team to bring our message to the legislature. With a skilled staff attorney, Stella Boswell, and a strong group of appellate advocates, we have built a reputation for speaking clearly and persuasively to the courts. With growing membership in our Academy sections, excellent CLE programs, and the daily sharing of information on our Academy listservs, members are helping each other more effectively than ever before. 

So the time is now. Together, we will fight to end the death penalty. Together, we will tell the stories that reveal the truth. Together, we will tear down these barriers to justice.

Burton Craige, 2001-02 Academy President

President's Column: Bringing Down the Barriers to Justice
--Burton Craige

Sovereign Immunity: The King Can Do No Wrong?
--Rebecca Britton

The Punitive Damages Cap
--Burton Craige

Rule 9(j)
--John Jensen and Jonathan Sauls

The Products Liability Statute of Repose: Questioning the Constitutional Foundations
--Michael Patrick

Contributory Negligence
--William Mills

Sovereign immunity. Based on the ancient rule that "the king can do no wrong," local governments in NC are exempt from responsibility for their wrongdoing. Someone injured by a negligent city employee in Durham or Charlotte has no right to be compensated for her injuries. We threw out George III more than 200 years ago. It's time to throw out the last vestiges of royalism, and abolish sovereign immunity. And it's time to root out the public duty doctrine from the State Tort Claims Act, so that State tortfeasors are held to the same standards that apply to private citizens.

Products liability statute of repose. The statute of repose for products liability claims in North Carolina is only six years, the shortest in the country. Manufacturers have free rein to dump their defective products in NC, with little fear of being held accountable. We need to pass the bill pending in the General Assembly that extends the statute of repose to 15 years. It's time to bring North Carolina in line with the rest of the country, and take down the "welcome" sign for manufacturers of defective products.

Rule 9(j). Six years ago, the General Assembly passed the Negligent Doctors Protection Act, also known as Rule 9(j). The rule requires the plaintiff to obtain a pre-suit statement by an expert certifying that he or she will testify that the defendant was negligent, before any discovery has been done. In cases where the medical records do not tell the whole story, the pre-suit certification requirement denies injured patients access to the courts and due process. And the rule has spawned a whole industry of collateral litigation that has burdened the courts, enriched insurance defense attorneys and delayed justice. It's time to repeal Rule 9(j).

The cap on punitive damages. In the tort reform frenzy of 1995, the legislature passed the punitive damages statute. The statute limits punitive damages to the greater of three times compensatory damages or $250,000 - no matter how outrageous the conduct, no matter how wealthy the defendant. In a pending case against KMart, application of the cap resulted in the reduction of a multi-million dollar punitive award - which the trial judge found to be reasonable and supported by the evidence --to $250,000. The reduced amount was .0007 percent of Kmart's annual income -- the equivalent of a fine of 73 cents for an individual defendant earning $100,000 per year. When the defendant is a wealthy corporation, the cap utterly defeats the purposes of punitive damages: punishment and deterrence. In the KMart case, we have filed an amicus brief in the Court of Appeals, challenging the cap as a violation of the right to trial by jury, guaranteed by the North Carolina Constitution. It's time for the cap to go.

Contributory negligence. The harsh and antiquated doctrine of contributory negligence remains the law in North Carolina. If the plaintiff is at fault even in the slightest degree, he or she will receive no compensation, and the wrongdoer walks away scot-free. It's time to join the 46 states that have seen the light, and send contributory negligence to the dustbin of history.