The Perry campaign sent out this release today. My comments appear below in italics:
Gov. Perry: We Need Increased Accountability,
Efficiency In Our Legal System
Announces Four-Point Lawsuit Reform Initiative;
Accepts Endorsement of Texans for Lawsuit Reform PAC
HOUSTON – Gov. Rick Perry today accepted the endorsement of Texans for Lawsuit Reform (TLR) PAC where he also announced a new lawsuit reform initiative that will build upon the successful lawsuit reforms implemented throughout the state in 2003.
“Our 2003 medical lawsuit reforms improved patient access and the supply of medical professionals across our state, but more is needed to restrain frivolous lawsuits and personal injury lawyers.” said Gov. Perry. “Despite the significant lawsuit reforms passed earlier this decade, Texans and Texas employers are still hit with frivolous lawsuits that cost thousands or even millions of dollars in legal fees to defend. It is time to introduce a higher degree of balance and accountability into our legal system.”
Gov. Perry is proposing a four-point approach that will limit unfounded claims and bring greater accountability and efficiency to our judicial system:
• Loser Pays for Frivolous Lawsuits: If a court determines that a lawsuit is groundless or a jury determines a suit is frivolous, then the plaintiff should be required to pay the defendant’s attorney’s fees.
–This is likely to be the most controversial of Perry’s proposals. The ABA calls it a tax on the right to litigate. Still, most industrialized countries in the world have adopted some form of “loser pays.” In England, potential litigants may by legal services insurance before going to court. I’m not sure that loser pays will make much of a difference, since the law profession is evolving in a direction of more mediation and arbitration, and less litigation, as well as clients insisting on prenegotiated fees. One of the advantages of a loser-pays system is that both clients and their lawyers have an incentive to take a long, hard look at exactly what their lawsuit is worth. In any case, I can’t defend the current system.
• Early Dismissal for Frivolous Lawsuits: Forty-two states and the federal courts already have this mechanism in place for the early dismissal of clearly frivolous lawsuits. If a lawsuit is frivolous, Texas judges should be able to dismiss the case immediately before the legal bills pile up and the trial court should award attorney fees to the defendant.
–Seems reasonable to me. Of course, beauty is always in the eye of the beholder, so exactly what a “clearly” frivolous lawsuit is ought to have some pretty tight definitions.
• Legislature Determines New Causes of Action: Texas judges should not be permitted to create a cause of action from the bench. We should require the legislature to explicitly state when they are creating a new cause of action in statute, forcing courts to read statutes strictly, and providing only those rights and remedies the legislature intended.
–Are Texas judges creating new causes of action from the bench? I doubt it. It seems to me that Texas judges do very little to benefit plaintiffs, much less go around creating new rights for them. I’m sure TLR has a specific case in mind, but I don’t think that Texas courts are full of activist judges who are creating new causes of action.
• Increased Access to Courts for Legitimate Claims: The court system should be more accessible to Texans with legitimate claims without the incurred costs associated with a drawn out trial. Lawsuits with claims between $10,000 and $100,000 should have expedited trial settings and limited discovery in order to get litigants in and out of the court quickly and allow swifter recovery for damages.
–This seems reasonable to me.
In general, I have always favored reasonable tort reform. I thought at the time and still do that the $250,000 cap on noneconomic damages enacted in 2003 is too low–should be $1M–but other than that I have little quarrel with current tort law. I’m going to try to find more about loser pays, and the reason for the concern about judicially created causes of action. Otherwise, I think that all of these reforms will pass.
[rest of press release omitted]