For the fourth time in recent memory, business interests and insurance companies want to further tilt the scales of justice in their favor. Called tort reform and pitched as being aimed only at frivolous lawsuits, the reality of these proposals is far different than the rhetoric used to justify them.
First, the system already deals harshly with frivolous cases. How do I know? I recently won $25,000 in sanctions for my clients when a judge agreed the other side’s lawsuit was frivolous. So what is a frivolous lawsuit? It is one that no sensible person believes is valid.
When someone wins a lawsuit, the judge, jury, court of appeals and Texas Supreme Court all believed that the case was valid — which proves just how wide the gulf is between the reality and the rhetoric of tort reform: These proposals don’t stop frivolous lawsuits; they simply limit liability in meritorious ones. The BPs, Halliburtons and Wall Street interests aren’t spending millions to stop frivolous cases. Their aim is to make it so difficult for you to sue them that they are effectively immunized from personal responsibility in valid cases.
One example is when legislators took away from judges and juries the power to assess damages in medical cases and set a one-size-fits-all cap, regardless of how badly a patient was injured. Touted as ridding us of frivolous lawsuits, the cap only comes into play after a jury decides that the patient was so badly injured that his damages exceeded $250,000. (Remember how we were told the cap would make health care affordable? You know how it didn’t.) The truth of the matter is that the cap was not aimed at frivolous cases to reduce health care costs; it was aimed at making medical cases so difficult that patients wouldn’t file valid claims, much less frivolous ones.
One proposal business interests and insurance companies are running up the flagpole now is called “loser pays.” Sounds good on the surface (and the lobbyists hope the name sticks), but it will only apply to claimants, not defendants. The bottom line is that, because most trials are “he said, she said,” if you have a real claim with real damages, you would have to weigh your decision to seek justice not simply on the merits of your case, but on the fear of having to pay your opponent’s legal bills if you lose. But that’s not the worst part; the worst part is that businesses and insurance companies won’t face that same fear. They can force you to hire an attorney, delay paying you for years while your case works its way through the courts, but won’t ever fear paying your legal bill when the jury holds them responsible. Why two sets of rules? Because they want to rig the system and lock the courthouse doors to all but those who hold its key – those with lots of money.
These same interests have another one-way proposal likely to surface this year: government regulation of your right to hire the attorney you want. Today, if you can’t afford an attorney’s hourly fee, you can hire one on a shared-risk basis (the attorney is paid only if you recover). The special interests want to set a very low fee for your lawyer, while allowing the business or insurance company you’re suing to hire the best attorney it can afford. Why shouldn’t individuals and small businesses have that same right? The lobbyists argue that capping your attorney’s fee will stop frivolous lawsuits, but because attorneys who represent the injured only get paid when a case is valid, this proposal again has nothing to do with stopping frivolous lawsuits and everything to do with stacking the deck. How? It’s really no different than if a sports league capped half of the teams’ salaries and allowed the other half to pay market rates for the best talent. Who do you think would win most of the time?
If you believe that sacrificing our legal rights on the altar of an imaginary crisis created by the same interests whose actions brought our country to the brink of financial collapse is wrong, I urge you to watch this session of the Texas Legislature closely and call your state representative and senator and tell them to vote no to more so-called “tort reform.” Our collective voices must be louder than the special interests’ pockets are deep.
Simon is an attorney in Houston who represents consumers in consumer protection cases and small business owners in commercial cases. He is the founding partner of Simon, Herbert and McClelland.