Law and Disorder
Readers’ responses to the November issue
Law and Disorder [Roar of the Crowd]
TLR vs. TM
More Roar
(Page 2 of 2)
TLR is proud of the contribution that it has made in bringing about reforms to achieve a fair and balanced civil justice system. Your article’s assertion that TLR has single-handedly manipulated the Texas Legislature and the tort system to “close” the courts of Texas, abolish the rights of ordinary people, and establish a regime “in which there is no recourse for wrongdoing, one in which the powerful simply get their way,” reflects a view shared only by TLR’s public-policy opponent, the organized plaintiffs’ trial bar, a narrow special-interest group whose fortunes rise and fall on every change in the civil justice system.
Our leaders and supporters share a concern for the rights of those injured by wrongful conduct, but justice must be accorded to all litigants. Nor should public policy ignore impacts such as the loss of access to medical care resulting from an out-of-control litigation system. As businessmen and as individuals, our leaders and supporters have gone to court both as plaintiffs and as defendants, so we need no lesson in the importance of courts that are fair, predictable, honest, and open to all.
Because a 1,500-word letter does not allow for a comprehensive analysis of the inaccuracies of fact and law in your article, we invite readers to visit tortreform.com for a detailed analysis of the article.
Richard W. Weekley, Leo Linbeck Jr., Richard J. Trabulsi Jr., Hugh Rice Kelly
Houston
Editor Evan Smith responds:
On November 2, 2005, Texans for Lawsuit Reform reacted to the publication of Mimi Swartz’s article by submitting a 3,314-word letter for publication asserting that she had made significant mistakes of law and fact. Although the maximum length of the letters we publish is typically 500 words, I offered space for a 1,500-word letter in Texas Monthly’ s January 2006 issue, and I promised we would fully address the issues TLR raised. After going back over TLR’s concerns and determining that all but two—neither of which was germane to the point of the story—were simply differences of opinion or interpretation rather than mistakes, I asked both Swartz and senior executive editor Paul Burka, who edited her story, to craft a response that acknowledged our errors but otherwise refuted TLR’s allegations. But when TLR resubmitted its letter on November 15, the specific allegations of mistakes of law and fact were missing. Instead, the organization chose to use the space it was provided to tout its accomplishments rather than to challenge the accuracy of our story, as is its right.
However, the new letter does contain two criticisms that warrant a response.
In the very first sentence of the letter, TLR refers to the article’s “limited and biased coverage of the litigation reforms of the past decade.” In fact, Swartz devotes two entire sections of the story—some 1,300 words—to the problems of the legal system created by the undue influence of plaintiff’s lawyers in the eighties and to the reforms achieved by TLR in 1995. She concludes this discussion by writing, “While plaintiff’s lawyers howled that victims would have a much harder time winning cases, it was hard to argue with reforms that probably corrected some of the worst abuses of the legal system.” The current problem, she observes, is that “the past has become the mirror image of today.” The informing idea of the article is that tort reform has effectively closed the doors of the courthouse to many litigants. That is a point of view, based on five months of research and analysis, not a preexisting bias.
Later in the letter, TLR charges, “Your article dwells on HB 4’s limit on non economic damages (such as mental anguish) but fails to adequately explain the broad scope and availability of economic [TLR’s emphasis] damages, including past and future medical expenses . . .” In describing how the $250,000 cap on noneconomic damages worked in the case of Alvin Berry, Swartz plainly states, “Medical expenses are not subject to the cap.”
Although TLR chose not to resubmit its original letter at a more manageable length, it has widely disseminated a retooled version —now at more than five thousand words— to its supporters throughout the state and on its Web site. Again, that is its right. But our readers deserve to see our vigorous defense against TLR’s allegations. Consequently, we have posted the organization’s original request for corrections and our detailed response online.
I AM A PRACTICING LITIGATOR in Houston. From a pure economic standpoint, no litigator should ever be in favor of tort reform because it will adversely affect, either directly or indirectly, the success of his law business. I do believe that the legislation that passed in 1995 in many respects evened the field, even though it was not necessarily to fix any particular problem in the justice system. Tort reform since then has been a dirty playground fight, and TLR and its people are the bigger, stronger bully at this point. What is not right is that the people who have really been fighting this fight give no thought to collateral damage, the regular people like the ones highlighted in Ms. Swartz’s story. It would not be difficult to compromise, either to give judges some discretion regarding damage caps or to even create exceptions in the statutes themselves. But why would we want to try to come together on these issues when we can stay as divided as we are on so many others these days? If you have the power, why not go for the jugular, right? It really won’t make a bit of difference to the majority of voters, and we can twist it the way we want in our ads and blast them with doomsday scenarios (i.e., doctors will leave the state if these caps aren’t voted in).
The evidence used to support the 2003 laws turns out to have been about as flimsy as the intelligence used to justify the invasion of Iraq. This is all just payback and revenge—dirty politics at the expense of the people who make this state what it is. And of course lawyers are made out to be the bad guys, even though there are just as many or more of them on TLR’s side. [Leo] Linbeck and his cabal are a bit out of touch with reality; no ordinary citizen really needs to know what joint and several liability is, and let’s face it, most people wouldn’t care unless it affected them personally.
It should come down to our representatives working hard together, making concessions, accepting trade-offs, and trying to do the best job as a whole for the citizens of Texas. Would it be so bad to make a deal? Why keep fighting for fighting’s sake? Yet it goes on with no end in sight. At the top of TLR’s Web site is a sharply worded and scathing criticism of Ms. Swartz’s article, which I found to have represented the issues objectively under the circumstances. I agree she was wrong about some of the law and may have in certain places shown her leanings on the issues, but not surprisingly TLR has politicized it and blamed it on the trial lawyers. Sad to say, but there is no deal in sight.
Casey Bell
Houston
Fare Enough
In your search for chicken-fried steak in San Antonio [“Southern Comfort,” November 2005], where is the Tip Top Cafe?
Doris Tudyk
San Antonio
You missed a treat by staying in the big cities. The all-time best chicken-fried steak can be found at the Cotton Gin, just west of Kaufman, in Crandall.
Carolyn and Paul Waters
Tyler
Y’all obviously have not lunched at Ben’s Longbranch BBQ, in Austin, on Wednesdays. Though all of the soul-food selections are wonderful, the greens are the best.
Rick Antoine
Austin
Boys Will Be Boys?
I must say that I was disturbed by what went on at Boys State [“State of Dysfunction,” November 2005]. It sounded to me like a gay-bashing pep rally. How can boys who are chosen to attend Boys State based on their intelligence and good deeds behave in such an ignorant and narrow-minded manner? How about dealing with some real issues, like health care for children whose parents can’t afford insurance. I commend the three young men in the article for their bravery and for not being sheep. They are the true leaders.
Melanie Vanecek
Sugar Land
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