On the menu for tort reform this year, the appetizer is capping contingency fees. The choice of entrees is between damage caps and limiting liability exposure. Dessert? Restrictions on class-action lawsuits.
These delectables appear headed for Gov. Brad Henry’s desk, if not the ballot box. Henry will likely find them distasteful, siding again with the trial bar and against the greater good. The Republicans who now control the Legislature, but not the governor’s office, are feasting on the opportunity to finally enact significant reforms. Trial lawyers, unsated by all the sway they’ve held since statehood, want to shut down this feeding frenzy before it slops their gravy train. As leverage, Republicans are using the tactic that a new governor will be in office two years hence and he or she might welcome an all-you-can-eat buffet. Why not, they ask, accept reform lite now instead of a higher-calorie version later? Whatever the outcome of pending legislation, be it enacted by the Legislature or approved by voters, it will be challenged in court by the same folks who feed on the status quo. Texas solved this problem with constitutional amendments. That may be the last course here as well. Tort reform opponents claim capping contingency fees hurts injured parties. That’s a tofu argument for a beefy problem. Caps limit what trial lawyers make; that’s the only reason they find them unappetizing. We must choose the salad bar over the trial bar or risk the gnawing hunger of having other states pass us by.