Law and Disorder
Your November 2005 article [“Hurt? Injured? Need a Lawyer? Too Bad!”], ostensibly on tort reform, was disappointing in its limited and biased coverage of the litigation reforms of the past decade, the grassroots movement that generated those reforms, and the improvements in Texas law and society that the reforms have produced. Those reforms have been passed in successive sessions of the Texas Legislature with overwhelming bipartisan majorities because legislators believed sincerely, and correctly, that they were acting in the best interest of the people of Texas.
The civil justice reform movement in Texas is broadly based. Texans for Lawsuit Reform has 13,700 supporters in cities and towns throughout Texas, representing 1,200 trades, professions, and businesses. TLR is one organization in a tort reform coalition of scores of organizations and associations that represent every aspect of Texas society. The tort reform movement arose in response to a civil justice system of the eighties and early nineties that was firmly in the grasp of a small group of personal-injury plaintiff’s lawyers who had extraordinary influence in the Legislature, the Supreme Court, and the local courts. As a consequence, most defendants in Texas feared they could not get a fair trial. The problems were so pervasive that only a persistent effort of more than a decade has restored significant fairness and balance to the law governing our civil justice system.
In the last legislative session, Texas enacted historic asbestos-silica litigation reform in Senate Bill 15, which passed the Senate 30—0 and the House by voice vote without dissent. TLR led the legislative advocacy for that bill, and our lead counsel conducted two weeks of discussions with the plaintiffs’ bar in the Senate’s conference rooms. SB 15 will halt the abusive practice of lawyers’ filing claims for unimpaired asbestos and silica claimants, a practice that has bankrupted more than seventy U.S. companies and cost tens of thousands of American jobs. This abuse has been documented by a Texas federal judge, Janis Jack, who conducted hearings on hundreds of silica claims (sponsored by some of the same law firms and attempting to replicate the abuse of claims on behalf of unimpaired persons that created a crisis in asbestos litigation). Judge Jack examined the “diagnoses” in those cases and concluded, “These diagnoses were driven by neither health nor justice; they were manufactured for money. The record does not reveal who originally devised this scheme, but it is clear that the lawyers, doctors, and screening companies were all willing participants.” SB 15 ends these abuses without limiting the rights of truly harmed Texans to their day in court and will relieve large and small Texas businesses from abusive asbestos and silica lawsuits.
TLR has advocated higher pay for judges and jurors, including this year’s long-overdue judicial pay increase, which will allow Texas to better attract and retain a well-qualified judiciary. Legislators also increased juror pay so that jury service will be less of a burden on working Texans. Because we believe the jury system is essential to our justice system, it is important that juries be selected and compensated fairly.
The Omnibus Civil Justice Reform Act of 2003 (House Bill 4) enacted the most comprehensive civil justice reform in American history. The bill passed with votes of 28—3 in the Senate and 110—34 in the House. Just a few of the provisions in HB 4 are: (1) Juries are empowered to hear evidence and to assign a percentage of fault to each potentially responsible person according to that evidence. (2) A statewide multidistrict litigation system is established to eliminate abuses in mass tort litigation and to enhance efficiency and predictability. (3) Class action abuses have been comprehensively reformed, including requiring lawyers who obtain discount coupons for their clients to receive their legal fees in coupons as well. (4) Appeal bonds are regulated to preserve the rights to appeal an unjust judgment. (5) Juries can consider evidence of seat belt usage at the time of an accident. (6) Volunteers of charitable organizations, volunteer firefighters, and teachers are given protection from abusive lawsuits.
HB 4 also reforms medical liability lawsuits—based on a California statute that has proven successful for thirty years. The health care community, through the Texas Alliance for Patient Access, led the medical liability reform effort, which we supported. Texas faced the imminent collapse of its medical underwriting system after thirteen of seventeen malpractice insurers stopped writing new policies in Texas in the 36 months before the passage of HB 4.
Doctors all along the border had walked off their jobs in protest of unfounded, destructive litigation, and injured persons were suffering because health care professionals were becoming increasingly scarce in parts of the state. In contrast, because of the HB 4 reforms, the American Medical Association recently removed Texas from its “crisis state” list, the first state to have been removed from that list.
There is a key legal point within the medical liability reform law that is important for your readers to understand. Your article dwells on HB 4’s limit on noneconomic damages (such as mental anguish) but fails to adequately explain the broad scope and availability of economic damages, including past and future medical expenses, physical rehabilitation, long-term nursing care, medication, necessary medical equipment, lost income, and lost future earning capacity resulting from injury, plus interest.
Even plaintiffs such as mothers who are not employed at the time of their injury can recover lost future earning power, because this element is measured by lost capacity to earn money rather than loss based on current earnings. Moreover, in the case of a child with serious and permanent injuries (such as blindness), courts have presumed that a disabled child will suffer diminished earning capacity for life. Impaired earning capacity and other forms of economic damages often run into the hundreds of thousands, or even millions, of dollars. In the case of a seriously disabled child, a lifetime of substantial lost income could provide evidence of millions of dollars in economic damages, as supported by Texas case law.
Additional civil justice reforms benefiting the people of Texas were passed in 1999 with overwhelming bipartisan majorities, providing lawsuit protection to doctors and other health care providers who treat people unable to afford medical care and protecting employers from damage claims for providing truthful job performance information.
Another reform creates checks and balances on state officers who enter into contingency fee arrangements with outside lawyers. This will prevent any return of the kind of contingency fee abuse that ultimately landed former Texas attorney general Dan Morales in prison. The reform allows lawyers hired by the state to receive a traditional hourly based fee, which may include a contingent fee component capped at $4,000 per hour (instead of the hundreds of thousands of dollars per hour that Morales authorized for five attorneys in the tobacco settlement, a fee that totaled $3.3 billion).
In 1995, TLR’s first session, other landmark reforms were achieved: (1) legislation returning the Deceptive Trade Practices Act to its roots as a consumer protection bill while eliminating abuses that had carried it far beyond its original intent; (2) venue reform to stop lawyers from bringing cases in handpicked courts rigged against defendants, a practice responsible for some of the worst abuses in the Texas civil justice system; (3) punitive damages reform limiting recoveries to twice economic damages plus an amount up to $750,000 for noneconomic damages; and (4) reform of judicial elections through the Judicial Campaign Fairness Act, bringing greater transparency and imposing strict limits on the amount of contributions that a PAC, an individual, or a law firm can make to a judicial candidate.
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
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.
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
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.
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.