Future Forum: Guilt, Innocence, and the Death Penalty 
Hurt? Injured? Need a Lawyer? Too Bad!
Two years ago, rich and powerful Texans said lawsuits were ruining the state’s economy and needed to be fairer. Today, thanks to tort reform, they are fairer&mdash for business. Ordinary people are out of luck.
David says: I wish the good people of Texas would petition to bring this reform to a vote again. It is bad for all and you will never know how bad until you are in the middle like I am. I pray you never have to find out. So SPEAK UP TEXAS AND RID THIS TORT REFORM just as we rid this great nation of the worst President in many years. (October 25th, 2008 at 6:14pm)
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THE YEARS BETWEEN 1995 and 2003 were frustrating for TLR. Many legislators in both parties lacked the stomach for another tort reform battle, feeling they had addressed the issue well enough. But not TLR. Thwarted in Austin, TLR’s leadership turned its attention to judicial races, investing around $1 million to defeat Elizabeth Ray, a Houston district judge, in a 2002 Republican primary runoff election for the Texas Supreme Court. Ray had a reputation for fairness in her courtroom and, like many judges, accepted campaign contributions from lawyers representing plaintiffs as well as from lawyers representing defendants. But in an exceptionally bitter race, TLR tarred her as a sham Republican and a friend of the plaintiff’s lawyers. Its candidate, Dale Wainwright, won. The lesson was that you didn’t cross TLR. (“Support from plaintiff’s lawyers is a campaign issue,” Trabulsi told me solemnly.)
But by 2003, TLR’s years in the wilderness were over. A Republican wave had swept through the state in the 2002 elections, and Republicans commanded substantial majorities in both houses of the Legislature and controlled every statewide elected office, including all seats on the Texas Supreme Court. Once a plaintiff’s paradise, the court in 2002 and 2003 was finding for plaintiffs in only 19 percent of its cases. TLR had friends in high places too, including Governor Perry and his chief of staff, Mike Toomey, a tort reform true believer who had taken a leave from a lucrative lobbying practice that included TLR as a client. At the beginning of the legislative session, there were two tort reform bills, one originated by doctors (and endorsed by TLR) that capped noneconomic damages in medical malpractice cases at $250,000 and another containing an assortment of protections for businesses, supported by TLR. In a clever strategic ploy, the House leadership combined the two bills, making it difficult for a lawmaker who supported one but not the other to vote no. Says Democratic state representative Craig Eiland, of Galveston, himself a trial lawyer: “Never have so many who needed so little gained so much.” The governor’s office cleared the way by maneuvering to remove the Texas Medical Association’s head lobbyist, who was deemed to be too friendly with the trial lawyers and had supported Perry’s opponent in the 2002 governor’s race. Once the lobbyist was dispatched, the TMA’s new leadership refused to engage with the trial lawyers at all.
The 1995 tort reforms had been forged during negotiations between lawyers on the two sides, but with Republicans in total control of the legislative process, compromise was a thing of the past. The sponsor of the tort reform bill, state representative Joe Nixon, of Houston, was also the chair of the committee where the bill would get its initial hearing. Nixon curtly informed the TTLA that there was “a new sheriff in town,” and things went downhill from there. “The concern was the train was going so fast no one could stop it,” Mark Lanier told me. When Lanier protested that the trial lawyers were being shut out, he found, coincidentally or not, a private investigator on his tail.
When the bill reached the House floor, hostility between Republicans and Democrats erupted in the first twenty minutes of what turned out to be a two-week marathon. Democrats filed hundreds of amendments to the bill; Republicans interposed parliamentary objections; Democrats protested adverse rulings by Speaker Tom Craddick; and on it went. Republicans voted as a bloc—the occasional stragglers were quickly whipped back into line by Craddick—and so, most of the time, did Democrats. Their pleas for exceptions to the cap fell on deaf ears. What if, for instance, an injury was proved to be intentional to a child or an elderly or disabled person—someone without significant economic damages? The answer was no exceptions; the cap would remain at $250,000. What about nursing home patients who were injured? Nope. What if the doctor was proven to be drunk? Still no. What about allowing the cap to rise with the consumer price index? After all, the $250,000 cap, which was chosen because a similar figure had been adopted in California in 1975, would be worth a little over $750,000 in 2003 dollars. No, no, no. Meanwhile, the TLR principals remained a constant presence in a corner of the House gallery, which inspired a Democratic state rep to christen their spot “The Owners’ Box.” (TLR spokesman Hoagland told me, with barely contained outrage, “My guys were there for civic virtue. We are not divorced from the legislative process.”)
The House passed the bill 99—45. The Dallas Morning News called it “Open Season on Plaintiffs.” It gave judges authority to return cases brought by out-of-state plaintiffs to their home courts; allowed challenges to forum shopping to be appealed at the time of trial, instead of after a lawsuit was over; made plaintiffs (but not defendants) responsible for court costs and attorneys’ fees if they turned down reasonable settlement offers and then lost at trial; and placed a limit on contingency fees, a device that is the only way people of limited means can get to the courthouse. Plaintiff’s lawyers front all expenses and get reimbursed (and paid a fee) only if the client wins. TLR wanted to fix the remaining problems held over from the eighties, but the limit on contingency fees and the medical malpractice cap also had the benefit of constraining the ability of trial lawyers to practice their profession.
The trial lawyers had some hope when then—state senator Ratliff, who was known for his evenhandedness, balked at the House version of the bill and set out to write his own. He nixed the limit on contingency fees and made defendants as well as plaintiffs subject to the penalties for turning down reasonable settlement offers. He also included language that allowed the $250,000 cap to be stretched to $500,000 and even $750,000 in rare situations. But enough of the reforms stayed intact for TLR to champion the bill and the TTLA to regard it as a disaster. Hartley Hampton, a former head of the TTLA, put it this way: “It was the session where the lobbyists basically acted like looters, and they got all of the candy that they were unable to get in an atmosphere of deliberation and negotiation in 1995. It was a piecemeal dismantling and sale of our civil justice system.”
TLR AND ITS TORT REFORM allies had to fight one more battle before the victory was secure. Back in the eighties, the Texas Supreme Court had struck down a 1977 law that capped damages for victims who were injured but did not die from medical negligence as “unreasonable and arbitrary.” They called the law “a speculative experiment to determine whether liability insurance rates will decrease.” But by 2003 that Democratic court, and the Democratic Texas it operated in, was long gone. A constitutional amendment allowing caps—if approved by the voters—would put to rest any doubt over the legality of the new $250,000 cap.
The fight over Proposition 12, as the constitutional amendment was called, presented the people of Texas with a Hobson’s choice: access to medical care versus access to the courts. On one side were doctors, insurance companies, and business interests, who claimed that physicians would leave the profession if malpractice insurance rates were not reduced; on the other were trial lawyers and consumer groups, who said that injured victims would have no recourse if the caps took effect. Each put harrowing statistics and shrewd emotional ploys to work, and each side spread around plenty of money—about $4 million came from the trial lawyers and their allies and $8 million from an agglomeration of pro-amendment groups, including TLR.
The amendment authorized a $250,000 cap on noneconomic damages in malpractice cases “and other actions,” three words that sent opponents of the proposition into a fury because they allowed the Legislature to cap damages not just on malpractice cases but on every personal-injury lawsuit, whether it involved drunk drivers or corporate polluters. Trabulsi suggested that no one in his right mind would take that possibility seriously, but retired U.S. district judge Finis Cowan, who had been a highly regarded defense lawyer at Baker Botts, strongly disagreed in a State Bar of Texas publication on the debate. “Clearly Prop 12 is not a medical malpractice reform,” he wrote, “but an amendment designed by special interests who have reasons for desiring to restrict access to courts and juries.”
Constitutional amendments are usually voted on in early November, but the Legislature moved the election to September to avoid the big turnout on a traditional election day, which probably would have defeated the amendment. As of June, polls showed that 62 percent of Texans favored letting legislators limit lawsuits, with just 28 percent opposed. Twenty years of lawyer bashing had taken its toll. To fight back, the lawyers hired the Dallas-based public relations and political consulting firm of Allyn and Company to run their campaign. The standard-bearer of the fight, however, was former Texas Supreme Court justice Deborah Hankinson, a plucky Republican and a Bush appointee who was willing to expend virtually all her political capital to defeat an amendment she saw as an affront to Texans’ most basic legal rights.
In the past, Hankinson had supported needed tort reform—and continues to do so—and accepted TLR contributions. But this amendment, she said, wasn’t designed to cut off bad—that is, frivolous—lawsuits; it was designed to cut off lawsuits by people with legitimate claims, by restricting access to the courthouse. (Meanwhile, special-interest groups had gained unprecedented control of the Legislature.) “This tort reform went too far,” she told me. “I don’t consider this to be reform. I view this as something that deprives people of their constitutional rights.”
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