Tort Reform, Plaintiffs' Lawyers, and Access to Justice

Stephen Daniels, Joanne Martin

• Publisher: University Press of Kansas
• Year: 2015
• Print ISBN: 9780700620739, 9780700620739
• eBook ISBN: 9780700620746
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Tort reform is a favorite cause for many business leaders and right-leaning politicians, who contend that out-of-control lawsuits throttle growth and inflate costs, particularly in healthcare. Less is said about how such reforms might affect the ability of individuals to recover damages for injuries suffered through another party’s negligence. On that count, Texas—where efforts at tort reform have been energetic and successful—provides an opportunity to appraise the outcome for plaintiffs and their lawyers, an opportunity that Stephen Daniels and Joanne Martin take full advantage of in this timely and provocative work. Because much of the action on tort reform takes place on the state level, a look at the experience of Texas, a large and important state with a very active plaintiff’s bar, is especially instructive.

Plaintiffs’ lawyers work on a contingency fee basis, collecting compensation for themselves as a percentage only if they win. Reduce lawyers’ ability to use contingency fees as compensation, as tort reform inevitably does, and you reduce their economic incentive to do this work. Daniels and Martin’s study bears this out. Drawing on over 20 years of research, extensive surveys and interviews, the authors explore the impact the tort reform movement in Texas has had on the ability of plaintiffs to obtain judgments—in short on private citizens’ meaningful access to the full power of the law. In the course of their analysis, the authors explain the history and economics behind the workings of the plaintiffs’ bar. They explore how lawyers select cases and clients, as well as the referral process that moves cases among lawyers and allows for specialization. They also examine the effects of medical malpractice reforms on plaintiffs’ lawyers—reforms that often close the courthouse doors to certain types of people—tort reform’s “hidden victims.”

Plaintiffs’ lawyers are the civil justice system’s gatekeepers, providing meaningful access to the rights the law provides. Daniels and Martin’s thorough and fair-minded work offers a unique and sobering perspective on how tort reform can curtail this access—and thus, the legal rights of American citizens.

1. In the Crosshairs

Plaintiffs’ lawyers are in the reformers’ crosshairs. As we will see, they are in the crosshairs because they are an easy target and wonderfully useful for symbolic purposes in the furtherance of tort reform and other political efforts. Republican strategist Frank Luntz advised conservative activists in the 1990s that they should be “making fun of the trial lawyers. . . . Make fun of them mercilessly. . . . They are truly one group in American society that you can attack with near impunity.”¹

More importantly, they are in the crosshairs because of the roles they play in the civil justice system and what happens when they play those roles well. They are the system’s gatekeepers and provide meaningful access to the rights and remedies the law provides. Through the cases they handle, they also help shape what the law is and what those rights will be. In other words, in talking about their roles we are talking about politics—politics in the sense of who gets what, when, and how. And tort reform, as political scientist Thomas Burke tells us, is all about distributional politics.² Indeed, well-known critics of plaintiffs’ lawyers like Lester Brickman and Walter Olson—both with ties to the strongly free market, individual responsibility, and pro-reform Manhattan Institute—attack plaintiffs’ lawyers precisely because they can affect who gets what, when, and how through the cases they bring.³

In the chapter’s first two sections, we address those reasons for plaintiffs’ lawyers being in the reformers’ crosshairs. Building on these two sections, the third places the discussion in the larger context of tort reform as a national political movement, one with goals much broader than the attainment of formal legislative changes dealing with tort cases. As the mission statement of the American Tort Reform Association (ATRA) we quoted in the Preface states, “ATRA’s goal is not just to pass laws. We work to change the way people think about personal responsibility and civil litigation.”⁴ This is important because plaintiffs’ lawyers are best understood in the context of the environment in which they work. The practice of plaintiffs’ law has always been a precarious business that is sensitive to both changes in the laws on the books and changes in the broader environment in which lawyers work. The tort reform movement, as ATRA’s goals reflect, wants to reshape that environment.

We conclude this chapter with a short illustration drawing on Luntz’s advice that nicely ties together the main points of each of the three sections. Our discussion in this chapter will touch upon the Texas experience, but a more detailed examination of the Texas context is the task of the following chapter.

the all-too-usual view

Calibrating the Crosshairs

Targeting lawyers for political purposes is an obvious strategy with an easy payoff. Lawyers generally are viewed—at best—with skepticism. Frank Luntz takes this characterization to the extreme, asserting that “few classes of Americans are more reviled by the general public than attorneys.”⁵ Opinion surveys appear to bear this out. Since the mid-1970s, the Gallup polling organization has asked people how they would rate the honesty and ethical standards of individuals working in a variety of fields. In twenty-six of these polls conducted from 1976 through 2010, no more than 27 percent of the respondents rated the honesty and ethical standards of lawyers as high or very high. By way of contrast, only once, in 1994, did fewer than 50 percent of the respondents not rate medical doctors’ standards as high or very high (47 percent). Starting in 2000, at least 60 percent of the respondents rated doctors as high or very high.⁶

If lawyers generally are viewed with skepticism, plaintiffs’ lawyers are viewed with derision, if not worse. For instance, an ATRA press release of February 27, 2003, announcing the results of the association’s then just-completed public opinion survey, quoted ATRA’s president Sherman Joyce: “There is clearly broad support for tort reform as a means to rein in greedy personal injury lawyers that are manipulating our legal system for personal financial gain at the expense of the average consumer.” Among the specific findings noted were: “Personal injury lawyers are widely disliked (55% unfavorable vs. 17% favorable) . . . 80% of the electorate agrees that personal injury lawyers take too much of the money they win on behalf of their clients . . . [and] 61% of Americans feel that lawsuits against doctors result in personal injury lawyers getting rich.”⁷ The theme continued with the key findings in a 2012 ATRA survey, which included the following assertion: “There is widespread identification across demographic groups of personal injury lawyers as the source of problems with the system.”⁸ Tort reform groups across the country, including Texans for Lawsuit Reform, touted the findings of both of these surveys.⁹

Given ATRA’s aggressive political stance in favor of tort reform, its poll results should be viewed with a bit of skepticism—at the very least. However, the results of other polls sponsored by groups not in the pro-reform camp are similar. Three polls conducted in the 2000s—two for Democracy Corp. (2005 and 2007) and one for Justice at Stake (2001) provide excellent examples. All used the same question with a 100-point temperature scale to ask people about their view of trial lawyers. A temperature rating of 100 degrees is the warmest, most positive evaluation a respondent could give, and 0 degrees is the coldest, most negative evaluation. The results with regard to trial lawyers are quite chilly. Among the three polls, at the highest only 31 percent of respondents in the 2001 Justice at Stake poll rates trial lawyers at least somewhat warmly at 51 degrees or higher.¹⁰

As if illustrating these survey results, an experienced San Antonio lawyer we interviewed told us about his perception of a change in jury behavior in the face of the tort reformers’ public relations campaigns. He said, “We start with the jury box and we start with the suspicion, and it’s hard to get a good verdict for a deserving victim. So very, very hard . . . [In the past] we felt a warmth in the jury box, whereas now we feel like it’s a refrigerator.”

Mass culture often reinforces and reflects the negative portrayal of plaintiffs’ lawyers. One need only look to the novels of John Grisham, which have over the years become a running commentary on the failings of plaintiffs’ lawyers and the legal profession in general. The fictitious Chicago plaintiffs’ firm of Finley & Figg is described in the opening of one of Grisham’s recent best-selling novels, The Litigators, as follows: “Finley & Figg’s scam was hustling injury cases, a daily grind that required little skill or creativity. . . . Two doors away was the intersection of Preston, Beech, and Thirty-Eighth, a chaotic convergence of asphalt and traffic that guaranteed at least one good car wreck a week, and often more.”¹¹ To further flesh out the character of the firm’s two partners, Grisham leaves little doubt as to their legal acumen, telling the reader that each “took the bar exam three times.”¹²

Of course, there is also the ubiquitous lawyer advertising on television, billboards, city buses, and almost anywhere else that advertising space is sold, along with direct-mail solicitation and the Internet. That too can reinforce the negative view of plaintiffs’ lawyers. In Texas, perhaps the most prolific, long-term television advertiser is Houston’s Jim “The Hammer” Adler. He also has a heavy presence on the Internet, including Facebook, Twitter, and YouTube.¹³ In a 2009 Texas Monthly interview, Adler explained his trademar...

Table of contents

• Front Cover
• Title Page
• Copyright Page
• Dedication Page
• Contents
• List of Figures and Tables
• Preface
• Acknowledgments
• 1. In the Crosshairs
• 2. “They Grabbed the Pendulum . . . and Nailed It to the Wall!”: Highlights of Tort Reform, Texas Style
• 3. A Glimpse of the Past and the Development of the Texas Plaintiffs’ Bar
• 4. The Tension between Professional Norms and the Need to Generate Business: A Window into Professional Identity
• 5. “People Like Me Are Really the Majority of Plaintiffs’ Lawyers”: Structure and Hierarchy in the Texas Plaintiffs’ Bar
• 6. “If My Referring Lawyers Go Away, I’m in Trouble”: Reputation, Specialization, and the Referral of Cases
• 7. “The Juice Simply Isn’t Worth the Squeeze in Those Cases Anymore”: Damage Caps, “Hidden Victims,” and the Declining Interest in Medical Malpractice Cases
• 8. Conclusion: “Unless There’s a Way to Make Money Practicing Law, Rights Don’t Make Any Difference”
• Methodological Appendix: Interviews and Surveys
• Index
• Back Cover