Legislative Tort Reform From A Tort Reformer’s Perspective
A Texas cowpoke once said, “If there’s a hole in your story or your fence, whatever you’d rather didn’t get out “ will. The big holes in the story spun by Hartley Hampton, president of The Texas Trial Lawyers Association, in the September 1999 issue of The Texas Bar Journal (Tort Reform, Y2K, And Other Litigation Issues) are that tort reformers walked away from the 1999 Legislative Session with modest accomplishments, and that legislative sentiment for further reform of civil justice laws has faded. In fact, very significant and badly needed tort legislation was passed in 1999. The enactment of those reforms is particularly impressive when one considers that 1999 was the fourth consecutive session in which meaningful tort changes were enacted by Texas legislators.
The more serious issue raised by Mr. Hampton’s article is his assertion that tort reformers œare greedy, arrogant, and aggressive special interests. I believe his assertion is demonstrably not true. I also believe that sweeping, emotional, and pejorative language of that kind does not constructively contribute to the debate concerning the serious issues confronting our civil justice system.
I will briefly discuss the tort reform activities in the 1999 legislature, and then move to the broader issue of the appropriate structuring of the tort reform debate.
TORT REFORM IN THE 1999 LEGISLATURE
Checks And Balances On State Use Of Contingency Fee Lawyers
SB 113 was folded into SB 178 in the closing days of the session, as a result of the bipartisan leadership of Senators Troy Fraser, Bill Ratliff and Ken Armbrister, and Rep. Rob Junell. This legislation simply creates reasonable checks and balances on state-awarded legal contracts, not different in concept than the checks and balances imposed on the state’s award of highway contracts. Yet it was bitterly opposed by the TTLA. The legislation prevents any one state officer or employee, acting alone, from hiring outside lawyers on a contingency fee contract. Contingency fee lawyers hired by the state are required to keep œcomplete written time and expense records, subject to inspection by the state. Legitimate and proved expenses are reimbursed from settlement or judgment proceeds. The ultimate legal fee is a multiplier of a base fee. The base fee shall not exceed $1,000 per hour, and the multiplier œmay not exceed four without prior approval of the legislature.
The Year 2000 Legislation
SB 598, the Texas Y2K law, was introduced by Senators Robert Duncan and Troy Fraser and Representatives Brian McCall, Jim Pitts, and Rob Junell, with Senator Duncan taking the leadership in forging an agreement between the competing interests. The goal of the tort reform coalition was to create a legal environment in Texas to: (i) encourage users to anticipate, and providers to correct, Y2K problems prior to January 1, 2000, and (ii) discourage the kind of speculative litigation concerning Y2K issues that seeks to intimidate defendants into settlements to avoid the time, energy, and cost of defending against non-meritorious lawsuits. While the legislation that emerged contains meaningful compromises to the original tort reform recommendations, it should, nevertheless, largely fulfill the goals of encouraging preventative action and discouraging a feeding frenzy of non-meritorious lawsuits.
Other Tort Reform Successes
SB 717 by Senator Jon Lindsey and Rep. Rick Green bans lawsuits by government entities against firearm manufacturers for crimes committed with guns. HB 341 by Senator Jane Nelson and Rep. Brian McCall allows employers to give truthful employee references with less fear of lawsuits concerning those references. SB 215 by Senator Robert Duncan and Rep. Kip Averitt protects doctors and other medical providers who donate their time and talent to treat people unable to afford medical care.
Tort Reform Disappointments
Senator Teel Bivins and Rep. Rob Junell introduced SB 274, which would have authorized the Texas Supreme Court to hear appeals of class action certification decisions by district judges. This would have allowed the Supreme Court to clarify the standards for class certification, which would ultimately save litigants from expensive discovery and pretrial proceedings in cases that should not be tried as class actions.
SB 614 by Senator David Sibley and Rep. Rob Junell would have allowed certain parties to be submitted to juries for determination of those parties™ percentages of fault. Namely, the bill would have allowed the submission of fault of the employer in a œthird party case, in which an employee who is covered by workers™ compensation sues a party other than his or her employer. Secondly, the bill would have allowed the submission of fault of an unapprehended criminal in a suit by the victim against a premises owner.
The TTLA, long one of Austin™s most feared and formidable lobbies, successfully maneuvered to cause the ultimate defeat of these two bills. Mr. Hampton can hardly claim with a sober face, however, that the defeat of these two bills œindicated the loss of favor for tort reform. After all, the œsubmission bill received 18 favorable votes on the Senate floor vs. 10 unfavorable votes. The class action bill, in a compromised form, passed the full Senate, as well as the House Civil Practices Committee. These results will hardly discourage the bill™s advocates from pursuing their proposals in the future.
Tort Reform Defense
For decades, the TTLA had a stranglehold on legislative consideration of all civil justice matters. Only with the 1993 session did a coordinated and effective counter-voice develop. Therefore, it is notable that during the 1999 legislative session, not a single piece of legislation opposed by the tort reform coalition was enacted into law. By any standard, this is a remarkable achievement of grass roots political activity.
THE BROADER DEBATE
Mr. Hampton and I, and our respective organizations, have fundamental differences of opinion about the appropriate role of litigation in our society. This is not particularly remarkable. Ours is a large, vigorous, and complex society, and the law is at its center. The law structures our society and profoundly impacts our economy. It is to be expected that strong and passionate differences would occur concerning the law, lawyers, and courts. What is remarkable is the extreme personalization of the tort reform debate by some of its participants.
I and my organization, Texans For Lawsuit Reform (TLR), are often accused by our opponents of being anti-plaintiffs’ lawyer or, even, anti-lawyer. Neither is true. At the origin of TLR, and at its very core today, are outstanding lawyers, litigators for the most part, whose own experiences with the Texas pre-reform civil justice system convinced them that their clients often could not get a fair trial in the state of Texas. Therefore, these lawyers frequently had to advise their clients not to go to trial at all, even when the lawyers believed their clients to be free of fault, for fear that an unjust, and financially ruinous, judgment might be rendered against them. These Texas litigators crafted solutions to the worst abuses they saw in Texas tort law. These lawyer-crafted solutions formed the basis for TLR’s original agenda, which was largely enacted into law by the 1995 legislature.
TLR’s opponents claim that we are trying to weight the scales of justice in favor of defendants. This is ridiculous on its face. I have personally sued as a plaintiff (as have other members of TLR), sometimes with representation by contingency fee lawyers. Some of our members sometimes sue each other. Some of our members benefited, in certain instances, from pre-reform conditions, such as open venue and joint and several liability. All of us are aware that in this dangerous and complex world, we do not know from one day to the next whether we will be injured by a negligent or intentional act of another, and whether we may need to access the courts for redress and compensation. In other words, it is not in our best interests to unfairly or unreasonably weight the system for either plaintiffs or defendants. We seek fairness, balance, competence, integrity, and common sense in our civil justice system.
Rather than slinging arrows at each other, the responsible and ethical plaintiffs’ bar, on the one hand, and the tort reform coalition, on the other, should engage in a serious and thoughtful debate about the core issues confronting our civil justice system, such as:
* Is litigation an appropriate alternative to legislation?
* Should mass tort litigation replace government regulation?
* Should litigation be used only (or primarily) as the remedy of last resort for the resolution of specific disputes? Or, rather, should litigation have a central role in the creation and imposition of broad social policy?
* Should all legal fees, including those defined in a contingency fee contract, be subject to a standard of reasonableness at the conclusion of the legal work?
* Should the practice of law be an entrepreneurial enterprise, with a win-at-any-cost bias? Or, rather, should every trial lawyer, on any side of litigation, be a true officer of the court, advocating his or her client’s position vigorously, but strictly within the confines of seeking a fair and just outcome?
* At what point does constitutionally protected solicitation pass into barratry?
* What is the appropriate role of juries in our system, and what is the impact on juries of modern trial practices, such as the use of psychologists and public relations experts in selecting juries?
* Is there a mechanism, such as an offer of settlement rule (similar to England™s payment-into-court system), available to both plaintiffs and defendants, which would discourage the pursuit of non-meritorious claims and non-meritorious defenses?
These are serious and far-reaching issues, to which TLR devotes considerable thought and research. We would welcome good-faith discussion about them with members of the plaintiffs’ bar.