New study of plaintiffs' lawyers and tort reform in Texas examines impact on access to justice for ordinary people
In a new book, “Tort Reform, Plaintiffs’ Lawyers, and Access to Justice” (University Press of Kansas, 2015), Stephen Daniels, American Bar Foundation research professor, and Joanne Martin, American Bar Foundation research professor emerita and director of administrative services for the American Bar Endowment, examine the very real consequences of tort reform activity for plaintiffs’ lawyers and what it means for access to justice for ordinary people.
Plaintiffs’ lawyers, acting as the gatekeepers to the civil justice system, are the key to meaningful access to justice for ordinary people. Many Americans cannot afford an attorney, meaning the only redress for an injury comes through an attorney who takes cases for a percentage of the recovery. However, in a variety of ways – up to and including strict limits on damage recoveries – tort reform makes this kind of plaintiffs’ contingency fee-based practice a very precarious proposition. As one plaintiff’s lawyer told Daniels and Martin, “Unless there’s a way to make money practicing law, rights don’t make any difference.” Daniels and Martin’s research concentrates on Texas, where there has long been a successful, substantial plaintiffs’ bar and a long history of tort reform activity.
Starting in the mid-1990s, Daniels and Martin began a series of studies in Texas covering more than 20 years of tort reform activity and the politics surrounding it. The choice to use the term “tort reform activity” is intentional for Daniels and Martin because they want to emphasize not just the tort reform legislation passed in Texas, but also the sophisticated public relations campaigns waged by tort reform advocates as a part of their political strategy.
A key part of that strategy is an unrelenting attack on plaintiffs’ lawyers as the alleged cause of many problems that tort reform will solve, like diminished economic prosperity, disappearing jobs or shortages of physicians. Another lawyer told them, “I believe tort reform was a major factor in my decision to close my practice. I found jury verdicts decreased due to the propaganda disseminated by insurance companies and big business, and this resulted in insurance adjusters offering less money to settle cases. I began to decline representation in cases I used to accept, and was working harder and receiving less money on cases I took.”
Most plaintiffs’ lawyers in Texas, however, are not going out of business. But Daniels and Martin found that some are leaving the practice area and most are adjusting their practices in the hope of staying solvent in a decidedly hostile environment caused by the public relations campaigns as well as the legislation enacted. Those adjustments involved re-examining the kinds of cases they would take and even the kinds of clients they would take on. This can diminish access and in some situations it can leave little or no chance for meaningful access.
For example, Daniels and Martin found that after the Texas Legislature passed a cap on noneconomic damages (commonly called “pain and suffering”) in medical malpractice cases in 2003, medical malpractice cases became much less attractive. The reason is simple – with limited damages it became more problematic to balance the risk and the cost involved in these cases, given that the lawyer pays all of the costs involved in preparing such a case. If the lawyer is not successful, there is no fee and no recoup of what will be a substantial monetary investment.
Not only have these cases become less attractive, but certain kinds of clients have become especially unattractive for the lawyers who will still take such cases. In the words of one lawyer who still takes medical malpractice cases, “They essentially closed the courthouse door to the negligence that would kill a child, a housewife or an elderly person.” The reason, he said, was the lack of economic recovery for damages like lost wages or medical expenses, and “unless it’s a drop-dead negligence that you can prosecute with one or two experts, that’s just not a case that I think in Texas right now is a viable case.” These are among the “hidden victims” of tort reform.
In light of the apparent success of the various tort reform activities, Daniels and Martin admit to a certain surprise that anyone would continue practicing as a plaintiffs’ lawyer in Texas. They found, perhaps to the reformers’ chagrin, these lawyers are still very much there. The reason is a unique professional identity that can transcend pure economic considerations. In the words of a younger plaintiffs’ lawyer, “You have true believers … I put myself in that category. What has appealed to me is a family with kids whose life gets turned upside down because someone in the family gets seriously hurt or killed, and they’re facing a greater than David and Goliath battle, and they need someone to fight for them. … I’ll be in this business until the bitter end. And I hope that the bitter end is not five years from now.”
For “Tort Reform, Plaintiffs’ Lawyers, and Access to Justice,” Daniels and Martin interviewed more than 150 Texas plaintiffs’ lawyers, some more than once. These were in-depth interviews about the lawyers and their practices. Additionally, they fielded two detailed surveys of Texas plaintiffs’ lawyers, one in 2000 and the other in 2006, which asked about the lawyers, their practices, and particular tort reform activities. To provide background on the contemporary plaintiffs’ bar, Daniels and Martin also did a substantial amount of archival research related to the history and development of the plaintiffs’ bar and professional organizations in Texas. And, as Daniels and Martin note in their acknowledgments, the Texas Trial Lawyers Association leadership and staff “gave us unparalled access to them, to meetings, and to events and allowed us to just hang around and talk.” University of Minnesota School of Law Professor Herbert Kritzer, co-author of the Oxford Handbook of Empirical Research and author of “Risks, Reputations, and Rewards: Contingency Fee Legal Practice in the United States,” said of the book: “In this masterful book, Daniels and Martin demonstrate how a sustained attack on the plaintiffs’ bar can deprive ordinary people of access to justice when they are injured by the negligence of others.”
