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Small businesses still victimized by lawsuit abuse

Balous Miller, owner and operator of a chain of South Texas barbecue restaurants, is the prototypical Texas small businessman ... and victim of lawsuit abuse.

In 1995, Miller had to defend himself in 12 consecutive lawsuits (18 more set for trial this year). So far, Miller has tried all 12 cases to a "0" verdict in the past two years but it has still cost him almost $200,000.00 in legal fees. It costs the taxpayers of Texas even more. He is asking Lt. Governor Bob Bullock to support a "loser pays" tort reform measure to eliminate expensive nuisance suits.

"This may seem a small problem to you, but it is a huge problem to me and many other small business people," says Miller. "Several years ago, Texas led the nation in Workers' Compensation Reform by instituting a system beneficial to both employee and employer. More recently, the passage of the 8 major Civil Justice Reform Laws has done much to alleviate the damage of old. However, if the state is serious about attracting new business, why not become the first state to adopt a law in which the loser pays?..."

 

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Join the effort

TLR continues to build and diversify its statewide leadership base of support as Texans hear about our 7-point Agenda of Reforms for 1997.

Three new Boards of Governors have been formed in Longview, Wichita Falls and Laredo. That brings the total to 22 boards - a total of over 1000 board members. These Boards continue to grow by the week and include most of the major population centers in the state.

Future leadership development is planned for Abilene and Galveston. If you know business and professional individuals in these communities who share your interest in working for a fair and balanced civil justice system for Texas, let us know by calling Beverly Kishpaugh at 972/480- 8123.

Media coverage continues. Recent organizational efforts in Wichita Falls and Longview resulted in newspaper articles containing remarks made by TLR leadership.

Texans for Lawsuit Reform is building a membership base throughout Texas, and we need your help. Every supporter of TLR should bring at least one other person into this worthy cause, in the last session of the legislature, it is estimated that more than 100,000 Texans wrote, called or met with their legislators to urge passage of the 11 -point Legislative Agenda. This grassroots effort was a critical element in TLR's success.

Members receive periodic communications, including this newsletter, and will be asked to help write Texas history by helping pass the 7-polnt Legislative Agenda. Please send or fax us the name of your new member joining the TLR team.

 

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What Texans think about tort reform

Texans for Lawsuit Reform (TLR) commissioned a poll last November through a bipartisan team of researchers Texans were asked their opinion of the state's civil justice system and which reform proposals they support. Here's what they told us (margin of error + - 3.5%)

 

70% Recent reforms did not go far enough
8% No further changes are needed in our tort laws
65% I would vote for a candidate for state legislature who is supported by business
13% I would vote for a candidate who is supported by trial lawyers
91% Lawsuits cause higher insurance premiums
85% Lawsuits cause higher medical costs
85% Personal injury lawyers benefit most from the system
67% Reforming tort laws will make the system fairer for everyone
66% Lawsuits are costing Texas jobs

 

83% Landowners should not be sued by individuals injured using the land for recreational or other non-business purposes.
78% Defendants should be responsible for damages in proportion to their share of fault
76% CPA's should not be sued if a third party did not tell the CPA they would rely on his or her audit report for their actions (privity)
75% Non-economic damages (i.e., pain and suffering, etc.) should be capped at $750,000.00
72% Employers need greater protection when they provide information about past employees to potential new employees
71% The loser should pay his opponent's attorney fees and other litigation costs if the lawsuit was flied or defended in bad faith, to harass, or coerce.
71% A plaintiff should not be allowed to recover twice...once from an insurance company and again from a defendant
70% Out-of-state claimants should use courts in their own state

 

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Tort reform on the Internet

TLR has taken its message to the Internet with a home page that features the 1997 7-point Legislative Agenda, a recap of the bills passed in the 1995 session, recent public opinion data, and research material about the seven legislative agenda points.

You can find the TLR home page at . Use it to keep up on the issues, stay in touch with other supporters, reach the TLR staff, and link to other civil justice reform sites as well as links to legislators for both e -mail correspondence and fax messages.

 

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A Problem Half Solved

Texas has earned the unfortunate reputation as "courthouse to the world." Lured by the prospects of outlandish damage awards, plaintiffs from around the country flock to Texas courts to sue for injuries which occurred elsewhere. Individuals and businesses often have to defend themselves against claims which have no logical relationship to Texas. Because witnesses are not in Texas, the defendant's ability to defend himself is severely handicapped. Injury claims are generally governed by the substantive law of the place of injury, so Texas courts have to figure out how to apply other states' and other countries' laws.

The importation of lawsuits is unfair to every Texan. Courts generally hear cases in the order in which they are filed, so Texans who deserve a day in court cannot get a speedy trial in courts clogged with out of state cases. Moreover, it seems a little absurd that Texans should be made to pay adjudicate claims which should be properly filed in another jurisdiction.

In 1990, a divided Texas Supreme Court ruled in Dow v. Alfaro that Texas courts, unlike the federal and other state courts, could not dismiss non-Texas cases on the legal ground of forum non conveniens, that the case should be brought elsewhere for the convenience of parties and witnesses. As might be expected, this widely criticized opinion led to a flood of foreign cases, including more than 20,000 foreign banana workers who sued in Texas for injuries they claimed came from exposure to agricultural chemicals in their home countries.

The legislature tried to repair the damage in 1993 by allowing Texas courts to dismiss claims of non-U.S. residents "on any conditions that may be just." That has effectively rid the Texas courts of foreign suits, but not those filled by plaintiffs from other states. There also are many exceptions. The statute does not apply to asbestos cases, so one company is having to defend 40,900 asbestos claims in Texas courts, even though 36,000 of the plaintiffs live in other states and do not even claim to have been injured in Texas.

The legislature must enable Texas courts to enforce the doctrine of forum non conveniens and send non-Texas plaintiffs with non-Texas claims back where they belong.

 

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National Media follow tort reform story

In the January 2 Wall Street Journal, John Stossel wrote in an article entitled Protect us From Legal Vultures that "...twenty years of consumer reporting has led me to suspect that the damage done by manufactures is trivial compared to what's now being wrought by the lawyers." Stossel favors a loser pay system and an offer of settlement proposal. The offer of settlement proposal is in TLR's 7-point agenda.

In an ABC television special, The Trouble With lawyers, aired in January, Stossel took a hard look at the state of the U.S. civil justice system and concluded major reform was needed. The program stimulated a lot of talk around the state. TLR has a limited number of videotape copies of the program. You may receive a copy by calling Amy Luskey at the TLR Houston office. Another recent report airing on PBS' Frontline was a comprehensive look at silicone breast implant litigation and examined the rush to judgment in courts fueled by "junk science" instead of real science. The program concluded that a lack of scientific evidence linking breast implants with health problems did not slow lawsuits that eventually forced Dow Corning into Bankruptcy.

 

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Working now: TLR's endorsement campaign

TLR's 1997 Legislative Briefing Books have been distributed to opinion leaders across the state, virtually every storewide trade association, chambers of commerce, as well as our 1000 + member board of governors. This effort is part of our campaign to gain endorsements from many statewide trade, professional and business associations.

"We need to educate many, many Texas citizens on tort reform and strive to obtain the support of virtually the entire state behind this effort," stated Richard Weekley.

To manage this endorsement campaign, TLR brought on staff Karen Overbeck, former manager of divisions and exhibitions for the Greater Houston Builders Association. Here are some of her suggestions on ways groups can help fix the Texas tort system:

 

1. Endorse the TLR 1997 Legislative Agenda and send TLR confirmation of the endorsement.
2. When interviewing candidates or writing candidate questionnaires, include the seven TLR agenda items as questions for oil state House and Senate candidates.
3. Be active in 1996 campaigns for state Senate, House and Supreme Court, and support proreform candidates against those who are anti-reform or neutral.
4. Educate group members through newsletter stories about the 1997 agenda (TLR can help you do that).
5. Prepare a membership database for phoning, mailing or foxing in the 1997 legislative session, and commit to join TLR in grassroots work.
6. Instruct your group's lobby team, if you have one, to support the TLR lobbying efforts before and during the session. If you want to know more or have some other ideas, please call Karen Overbeck at 713/963- 9363.

 

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Tort Reform - A National Perspective

The American Tort Reform Association (ATRA) held it's annual meeting in Washington, DC on March 21. Tiger Joyce, ATRA's president presided.

ATRA's national goals include coordination with state reform coalitions such as TLR. Areas where ATRA may be helpful include serving as a resource for statistics and model legislation and testimony in addition to providing TLR with a nationwide perspective on civil justice reform.

During a state legislative update, representatives from Ohio, Pennsylvania and Louisiana detailed efforts in their states to reform the civil justice system.

Max Boot, an editorial writer for the Wall Street Journal, presented a journalist's perspective to the group. He encouraged corporations to work with the media and use them to their advantage in getting the message out. TLR members should be familiar with Boot's work since many of the cases to which he refers to in his op-ed pieces feature Texas plaintiff lawyers.

The meeting closed with a discussion titled Legislatures v. Judges: Who Has the Right to Make our Nation's Tort Law. Victor Schwartz, a partner in CroweIl & Moring and Prof. Joseph Page of Georgetown University Law Center offered their perspectives on the subject.