I received the following e-mail in response to my discussion yesterday of Leibowitz’s bill that was a formal re-codification of certain statutes. The bill itself is of little interest. However, it contains a statement of legislative intent to direct the judiciary to read the bill as nonsubstantive. In other words, the courts should not regard the re-codification as changing the law in any way, the “plain meaning” rule notwithstanding. What aroused TLR’s ire was this innocent comment that I made about the Texas Supreme Court’s propensity to disregard such statements of legislative intent and apply the “plain meaning” rule anyway: So long as the Texas Supreme Court remains a wholly owned subsidiary of Texans for Lawsuit Reform, the Legislature engages in recodification at its peril and should be prepared for the Court to rewrite the laws at will to accomplish the purposes of its sponsors. Sherry Silvester responded for TLR: I am disappointed that you used the same cheap shot phrase you employed in October to belittle both TLR and the Texas Supreme Court. The cheap shot is just as inaccurate now as it was in October, when I first refuted it. Here’s the link to your archive and here are updates which add even more weight to the argument. In terms of “owning the court,” final campaign finance reports revealed that personal injury trial lawyers spent $1.4 million (literally laundered overnight through the Texas Democratic Party) to defeat three members of the Texas Supreme Court. The question I asked in October still stands: “…how can TLR, which is limited to $25,000 per judge in million dollar plus campaigns, acquire this ownership? The people who want to own courts include personal injury trial lawyers like Mikal Watts, who bragged that he virtually owned the 13th Court of Appeals, (Houston Chronicle, 9.5.2007). As noted in the report released yesterday by Texans for Public Justice (certainly not friends of ours), personal injury trial lawyers increased their spending in the last election cycle by at least 211%. Our analysis of 2008 campaign spending revealed that personal injury trial lawyers provided almost 25% of all campaign funding, more than any other business or industry in Texas. One could say that the Texas Democratic Party is a “wholly owned subsidiary of personal injury trial lawyers,” without fear of challenge, but I’ve never heard you make that comment. [OK, I’ll say it: “The Texas Democratic Party is a wholly owned subsidiary of the trial lawyers.” The difference is that Texas Supreme Court is a much more valuable subsidiary than the Texas Democratic Party, which is valueless.] Financial control of the Democratic Party by trial lawyers is unfortunate because it impedes efforts by Democrats to win statewide office. [I don’t think that trial lawyers are the reason why Democrats can’t win statewide office. I think that the reason is that the Democratic party lost its credibility as an opposition party when Bullock (and Laney) embraced Bush, and the party has not produced a credible statewide candidate since. With the exception of the 2008 Texas presidential primary, Democrats have been demoralized ever since.] Personal injury trial lawyers – including several of the biggest contributors — have been swarming the Capitol all session pushing bills that will make them even richer, even though they will kill Texas jobs and roll back the lawsuit reforms that are helping our economy weather the current downturn better than any other state. [I don’t think that the best way to save jobs is to oppose payment of claims of people who are fatally stricken with cancer caused by asbestos.] Finally, regarding Entergy, the Texas Supreme Court has done exactly what a court is supposed to do. They have ignored a firestorm of criticism from personal injury trial lawyers and their front groups and affirmed both the sound public policy of workers’ compensation for all and a standard business practice that has been followed in Texas for many years. I’ve attached a copy of our analysis of the Entergy decision for your review. It is posted on the TLR website. Here’s the link. With all due respect, I humbly suggest that it is long past time for you to reconsider your assessment of the Texas political landscape and discard your misconception that Texas business is wearing the black hats while personal injury trial lawyers, who have purchased their own political party and are trying to purchase their own Supreme Court, are somehow the good guys in the fight. [There are no good guys in this fight.] If you think that’s hyperbole, take a look at these numbers below. Sincerely, Sherry Sylvester Texans for Lawsuit Reform Texas Democratic Party Percentage of Trial Lawyer Contributions 87% Texans for Insurance Reform (front group) Percentage of Trial Lawyer Contributions 97% Texas Values in Action Coalition (front group) Percentage of Trial Lawyer Funding 96% Vote Texas (front group) Percentage of Trial Lawyer Funding 99% First Tuesday (front group) Percentage of Trial Lawyer Funding 93% Texas Democratic Trust Percentage of Trial Lawyer Contributions 73% House Democratic Campaign Committee Percentage of Trial Lawyer Contributions 56% Top 11 Trial Lawyer Contributors Fred Baron $2,235,000 Mikal Watts $1,035,142 John Eddie Williams $821,000 Mostyn Law Firm $634,000 Umphrey Provost $511,000 Nix Patterson $430,000 Reaud and Associates $337,000 Richard Mithoff $324,000 Baron & Budd $234,000 Frank Branson $217,000 John O’Quinn $213,000 Sherry — My gripe with TLR is that it has become what it set out to replace. TLR came into existence because the trial lawyers owned and corrupted the Texas Supreme Court and now the reverse is true: TLR owns the Court. Never mind how much who gave to whom. The judges know that if they buck TLR they will get an opponent. The same is true at the Court of Appeals level. I am not making this up. I talk to judges who are very active in judicial politics. They know what is going on. TLR currently opposes three bills that are awaiting action. One is the “paid and incurred” bill involving whether plaintiffs should be awarded damages according to how much they are billed or how much they actually are paid by their insurance company. The former amount is greater. I think TLR is right to oppose this one. Another bill is the mesothelioma (asbestos) bill that recently passed the Senate in the face of TLR opposition. The issue here is how to prove the injury. Duncan’s bill establishes a more generous standard of proof for victims. I’m for it. The third bill attempts to undo the decision in the Entergy case. I have already written about the Court’s judicial activism to reach its predetermined decision. The bill is described in the Tex Parte blog in Texas Lawyer: The bill amends the Texas Labor Code’s definitions for “general contractor” and “subcontractor.” Those definitions are the key to the Supreme Court’s April 3 ruling in Entergy that a premises owner that provides workers’ compensation insurance for all subcontractors’ employees working on its job site qualifies for immunity from an injured workers’ suit for negligence. With two members absent, the Business and Industry Committee voted 9-0 to send H.B. 1657 to the Calendars Committee to be scheduled for a vote in the full House. Helen Giddings says Business and Industry Committee members are in agreement that the Supreme Court “overreached” in its 6-3 ruling in Entergy. “It was never legislative intent to give third-party immunity to a premises owner,” she says. I recall meeting with Dick Weekly and other TLR founders long ago, when they first started TLR. What they told me was, they just wanted to see that the law was fair, that neither side had an advantage. I agreed with much of what they wanted to do. But the laws that TLR advocated for are not fair and they do give one side an advantage, and the Texas Supreme Court isn’t fair. Its decisions overwhelmingly favor defendants. TLR has achieved everything it set out to achieve. Now it’s just playing defense. When that happens, when you get to the point where you have to win them all, two things happen. First, you become the bully. Second, you start to lose.
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