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The Reformers

Executive editor Mimi Swartz on Proposition 12, partisan politics, and consumer rights.

By November 2005Comments

texasmonthly.com: How did you get tuned-in to the problems with and stories behind Proposition 12?

Mimi Swartz: It seemed that suddenly everywhere I went attorneys I knew were complaining about the kinds of cases they could no longer take, and it was really bothering them that they had to turn down decent, hardworking people with legitimate claims.

texasmonthly.com: Many of the people in your article—Alvin Berry, Karen Hindman, Brian and Stephanie Zaltsberg, and David Fuller—were unable to voice their stories in court. Did this give them incentive to discuss their stories with you? And were they forthcoming?

MS: Yes. They were so thwarted in their abilities to get a fair hearing that Brian Zaltsberg and David Fuller, in particular, were very interested in talking to the press. It’s interesting to me, too, that David Fuller, like Brian, has put up a Web site to state his case. It’s very detailed—www.etmc.info.

texasmonthly.com: In Alvin Berry’s case, he says he wouldn’t have been bothered so much if the doctor would have been apologetic about his mistakes. Does it seem that many lawsuits could be avoided if people were just nicer?

MS: This is actually something that has been cited in Malcom Gladwell’s book Blink—the answer is yes. People are much more likely to sue for malpractice if they feel their doctors have been mean to them.

texasmonthly.com: The founder, Richard Weekley, and three co-founders, Leo Linbeck, Richard Trabulsi, and Hugh Rice Kelly, come across as larger-than-life, almost Goliath-like characters, and the Alvin Berrys of the article seem to be the all-too-human Davids. How was it interviewing both sides?

MS: Powerful people always want more conditions for interviews, and the founders of TLR were no different in that regard. Though I will say that once we set up the interviews on their timetable—they were busy with the Legislature and wanted to be interviewed together—they were very forthcoming. As you can imagine, the people who feel they were wronged were very cooperative; Brian Zaltsberg and David Fuller have kept very good files on what they have been through.

texasmonthly.com: You say that “[o]nce upon a time, the purpose of tort law was to make injured people whole.” What do you think the purpose of tort law is in its current state?

MS: I think tort law now is not consumer friendly—the pendulum has swung to the other side, where it is protecting business interests far more than those of average workers and consumers.

texasmonthly.com: In your article, you paint a disturbingly partisan picture of Democrats and Republicans on Proposition 12, saying “[t]he middle ground is reserved for the all-too-human collateral damage of a bitter war involving big money and partisan politics, seemingly without end.” Why is there such political polarization on the issue? And do you feel the climate is changing at all?

MS: Because the country is polarized. This is an issue that has always been subject to partisan politics—first the Democratic trial lawyers, now the Republican tort reformers—and there probably won’t be much resolution until our leaders can put partisanship and special interests aside.

texasmonthly.com: You seem to suggest that by the eighties attorneys had basically gone wild with lawsuits against corporate defendants and that tort reform was needed. Was there ever a time between the reforms of 1995 and 2003’s Proposition 12 when, in your mind, there was a reasonable system in place?

MS: Probably right after 1995 there was a balance that people could live with, even if they grumbled about it.

texasmonthly.com: Are you aware of any changes in the cases you discuss since writing your story?

MS: Not yet. The Dueñez case comes up for review in November.

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