THE Legislature will convene in special session on Tuesday to reapprove lawsuit reforms recently struck down on a technicality by the Oklahoma Supreme Court.
There's no doubt Oklahoma needs reasonable restrictions on bogus lawsuits. Frivolous litigation affects all parts of the economy; health care is often hardest hit. The cost of successfully defending harassment lawsuits drives up overhead, threatening businesses' continued viability. Lawsuits should be a last resort; too often, they appear to be the first response by some citizens.
In recent years, the Legislature has enacted several laws reining in abusive lawsuits. The state Supreme Court ruled that one of those laws violated a constitutional provision requiring that bills cover only a single subject. As a result, lawmakers must now pass the same law again — this time broken up into more than two dozen bills to avoid another “logrolling” ruling.
Before the law was struck down, it was working as intended. Some lawsuits were being tossed for failure to meet new standards. One provision of the law required that individuals filing a lawsuit provide an expert's affidavit stating the plaintiff had good cause to file suit. Trial lawyers claim this is a financial barrier to court access because the affidavits can cost up to $5,000. Yet trial lawyers also tout the fact that they often bear the up-front costs of litigation, paying $50,000 to $100,000 per case.
Trial lawyers make money later off their cut of any plaintiff's award. This, they argue, encourages lawyers to pursue only legitimate cases. Fair enough. So why is paying $100,000 up front no problem, but paying $105,000 up front is suddenly an unreasonable barrier to the courts?
Lawsuit defenders also ignore the fact that many lawyers were previously willing to file lawsuits of questionable merit because the defendant's cost of fighting the lawsuit was often greater than the cost of a potential settlement. This encouraged settlements even in weak cases. Lawyers could put in minimal work and still get a payoff for frivolous litigation. Such cases are a prime target of lawsuit reform.
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