South Carolina federal district court outlaws secret settlements

Posted: Monday, October 07, 2002

In Boston, the Roman Catholic archdiocese secretly settled case after case of priests accused of child molestation and judges sealed many of the files. That freed some priests to move elsewhere and molest again....

For decades, courts across the country have routinely sealed legal files, and ignored the potential public health perils that come from dangerous products, incompetent doctors, and others who have benefited from secret settlements.

Now South Carolina's federal district court has voted to ban secret settlements filed with the court, sending a clear message to the nation's legal community. ...

The South Carolina ban would be limited to that district, but proponents hope it may galvanize federal and state efforts to pass new anti-secrecy laws. Those laws need to be carefully crafted to demolish unwarranted secrecy but allow judges enough room to maneuver. ...

In Illinois, court files must remain open unless lawyers demonstrate a compelling reason to seal them. In practice, however, most judges rarely challenge secret settlement agreements, many of which are settled on the condition that the details not be disclosed.

Some lawyers argue that anti-secrecy measures would discourage settlements and clog the courts with more trials; they say future plaintiffs would take advantage of knowing how much the last claim was settled for. That's hard to dispute. More openness means more knowledge for plaintiffs' lawyers to exploit. Still, that's a byproduct of openness, not a reason to thwart it. ...

In the meantime, the Illinois Supreme Court could also help send a message encouraging openness by issuing a rule to provide clear direction to state trial judges -- no secrecy, with a few rare exceptions. The rule would help judges carve out what exceptions they could make, and force judges to ask some tough questions before sealing filed court documents, including settlements. The first question should be: If I seal this file, could others be harmed?

-- Chicago Tribune

Sept. 29

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