Trial lawyers prepare for war against Perry

posted at 10:05 am on August 22, 2011 by Ed Morrissey

Texas has successfully implemented tort reform on the state level, saving businesses billions of dollars in the long run, and Rick Perry deserves a significant amount of credit for its conclusion.  He pushed through a final 2003 reform act that made Texas a model for tort reform, the finale of a long effort to transform the state from a “golden goose” for trial lawyers to a pro-business model.  Even trial lawyers admit that the state needed some reform, as Politico reports, but now plan to fight hard against a Perry nomination or candidacy:

John Coale, a former trial lawyer who has donated tens of thousands of dollars to Democrats over the years, agreed that Texas had once been the “golden goose” for plaintiffs’ attorneys.

“Now, the pendulum has swung in the other direction, where it’s a very bad place now,” Coale said.

“If Perry’s the nominee, the trial lawyers will come out of the woodwork to support Obama, where I don’t know that they would now,” he predicted. “Most of the guys I know don’t like [Obama], think he’s screwed up the economy or taken Bush’s bad economy and made it worse. But when your livelihood, your money’s on the line, it concentrates the mind.”

And they have the money to put up a fight, as Republicans know.  The prospect of a Perry presidency could galvanize them, says Alexander Burns:

A general election pitting Barack Obama against Perry could turn otherwise apathetic trial lawyers into a phalanx of pro-Obama bundlers and super PAC donors.

“If this guy emerges, if he’s a serious candidate, if he doesn’t blow up in the next couple weeks, it’s going to motivate many in the plaintiffs’ bar to dig deeper to support President Obama,” said Sean Coffey, a former securities litigator who ran for attorney general of New York last year. “That will end up driving a lot of money to the Democratic side.”

Some attorneys don’t intend to wait and see how Perry fares in the GOP primaries.

Democratic Houston trial lawyer Steve Mostyn – who, along with his wife, Amber, donated nearly $9 million to Texas candidates and party committees in the 2010 cycle – said he’s in the process of forming “some federal PACs” to take on Perry. That will likely include a federal super PAC that could take in the kind of massive donations that are permitted in Texas.

Somehow, I think we’ll be seeing the trial lawyers raising this kind of money no matter who the Republicans nominate.  It won’t just be for the presidential race, either.  If Republicans take control of the Senate and the House next year, we can expect to see tort reform on the agenda, especially if they succeed in repealing ObamaCare.  Tort reform in malpractice law will be one of the first goals for the GOP as a counter to Democratic demands for top-down government control of the health-insurance industry.  The kind of tort reform put in place by Texas (and California) would save the health care industry over $100 billion in the next decade, and the federal government would account for nearly half of that total.

Meanwhile, the newly-launched Perry campaign took another broadside this weekend from … the Wall Street Journal?  The conservative publication analyzed the Texas Emerging Technology Fund and its connection to Perry donors and political allies, and concludes that it gives off at least the appearance of “crony capitalism”:

The Emerging Technology Fund was created at Mr. Perry’s behest in 2005 to act as a kind of public-sector venture capital firm, largely to provide funding for tech start-ups in Texas. Since then, the fund has committed nearly $200 million of taxpayer money to fund 133 companies. Mr. Perry told a group of CEOs in May that the fund’s “strategic investments are what’s helping us keep groundbreaking innovations in the state.” The governor, together with the lieutenant governor and the speaker of the Texas House, enjoys ultimate decision-making power over the fund’s investments. …

In 2009, when Mr. Nance submitted his application for a $4.5 million Emerging Technology Fund grant for Convergen, he and his partners had invested only $1,000 of their own money into their new company, according to documentation prepared by the governor’s office in February 2010. But over the years, Mr. Nance managed to invest a lot more than $1,000 in Mr. Perry. Texas Ethics Commission records show that Mr. Nance donated $75,000 to Mr. Perry’s campaigns between 2001 and 2006.

The regional panel that reviewed Convergen’s application turned down the company’s $4.5 million request when it presented its proposal on Oct. 7, 2009. But Mr. Nance appealed that decision directly to a statewide advisory committee (of which Mr. Nance was once a member) appointed by Mr. Perry. Just eight days later, on Oct. 15, a subcommittee unanimously recommended approval by the full statewide committee. On Oct. 29, the full advisory committee unanimously recommended the approval of Convergen’s application. When asked why the advisory committee felt comfortable recommending Convergen’s grant, Lucy Nashed, a spokesperson for Mr. Perry, said that the committee “thoroughly vetted the company.”

Another Perry supporter, Charles Tate, appears to have taken advantage of his position on the TETF in connection to another grantee, but it didn’t pan out well for him in the end — or for Texas taxpayers:

ThromboVision, Inc., a medical imaging company, was also the recipient of an award from the Emerging Technology Fund: It received $1.5 million in 2007. Charles Tate, a major Perry contributor, served as the chairman of a state committee that reviewed ThromboVision’s application for state funding, and Mr. Tate voted to give ThromboVision the public money. One month after ThromboVision received notification that it would receive a $1.5 million state grant in April 2007, Mr. Tate invested his own money in ThromboVision, according to the Dallas Morning News. The Texas paper later found that by 2010 Mr. Tate owned a total of 200,000 preferred shares in ThromboVision.

According to a Texas state auditor’s report, ThromboVision failed to submit required annual reports to the fund from 2008 through 2010, when the company went bankrupt. The report noted the tech fund’s managers were “unaware of ThromboVision, Inc.’s bankruptcy until after the bankruptcy had been reported in a newspaper.” ThromboVision’s bankruptcy filing revealed not only that Mr. Tate had been a preferred shareholder in ThromboVision, but so had prominent Perry supporter Charles Miller, who owned 250,000 preferred shares in the company and has donated $125,000 to the governor’s campaigns. Three phone calls and an email seeking Mr. Tate’s side of the story went unreturned.

The two appear to have lost a lot of money in Thrombo Vision, which might be an argument that they truly believed in the venture rather than sought to manipulate their positions for profit.  However, as the leader of a government watchdog organization told the WSJ, the appearance of impropriety and the opportunities for mischief in these arrangements are precisely the reason why pork slush funds like the TETF should either not exist at all or be independent of the executive.  The fund still has $140 million in cash to allocate in grants, which means that the opportunities for mischief continue to exist.

Perry will need to explain the performance of the TETF, but at least he won’t need to explain the opposition of the trial lawyers.

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“If Perry’s the nominee, the trial lawyers will come out of the woodwork to support Obama, where I don’t know that they would now,” he predicted.

Hahahahhahahahahahahahaha…

Wait, let me catch my breath.

Bwahahahahahahahahahahaha…

Really? Trial lawyers wouldn’t have supported Obama?

The laughs just keep coming.

ButterflyDragon on August 22, 2011 at 12:22 PM

““If Perry’s the nominee, the trial lawyers will come out of the woodwork to support Obama,…”

Now there is a campaign ad that just rights itself…

… Trial lawyers hitching themselves to Obowma.

What could go wrong…?

/

Seven Percent Solution on August 22, 2011 at 12:31 PM

Palinistas versus Perryoids. Mitt-heads versus Hutsmaniacs. Ronulans versus everybody. Gonna be a long primary season.
Extrafishy on August 22, 2011 at 11:59 AM

How about Rick’s Rolls?

humdinger on August 22, 2011 at 12:32 PM

Extrafishy on August 22, 2011 at 11:59 AM

It’s Perryoids vs Mitt-heads. The rest is noise.

And to you trial lawyers out there (yes John Edwards, that includes you, you dirt bag) BRING IT!

MJBrutus on August 22, 2011 at 12:44 PM

Was it Dick Nixon who said that he judges a man by his enemies.

Most trial lawyers need to quit scamming and scheming and get honest jobs.

I have practiced law for almost 3 decades and trial lawyers have completely besmirched what was once an honorable profession.

And all at the cost and expense of the public.

We need a law which mandates that the plaintiff in an unsuccessful proceeding pay the legal expenses of the defendant(s).

That should do the job rather nicely.

molonlabe28 on August 22, 2011 at 12:44 PM

A general election pitting Barack Obama against Perry could turn otherwise apathetic trial lawyers into a phalanx of pro-Obama bundlers and super PAC donors.

Morning comedy at its finest.

slickwillie2001 on August 22, 2011 at 12:45 PM

Lawyering has become a blight on the land. One of the most dangerous examples of Lord Acton’s axiom about power.
Randy

williars on August 22, 2011 at 12:58 PM

I know I may be a minority in my profession, but I think being a trial lawyer is a very conservative profession with a high regard for rule of law, tradition, personal freedom and personal responsibility. The profession may be at odds with the “pro-business at any cost”, Chamber of Commerce bought and paid, establishment GOP, but it is not at odds with conservatives’ core principals.

Think of a robust civil tort system as an alternative to regulation. Unscrupulous businesses will always cut corners and take advantage of others or otherwise cause harm. That is just human nature. We can either regulate the hell out of everything and make sure no one ever has the opportunity to do anything wrong — but squash innovation in the process. Or we can deregulate things, allow people and businesses to do and innovate as they please, but with a strong tort system to punish them if they cause harm. It seems to me to be consistent with conservative principals of individual freedom and personal responsibility, to lighten regulation but at the same time preserving a tort system where those who cause harm are held accountable.

Regulation tries to avoid harm by preventing everybody from ever being in a position where they can cause harm BEFORE it takes place. That is a statists dream. The tort system punishes AFTER the harm is inflicted. It doesn’t seek to stop the harm BEFORE, only punish AFTER. Thus, it can act as a deterrent in an efficient market economy causing the unscrupulous to self-regulate their conduct in fear of lawyers.

The problem is not trial lawyers, but regulation. We have too much regulation, so trial lawyers seem duplicative and just yet another unnecessary burden on business. However, once the goal of reducing regulation is finally achieved, who will be there to right wrongs and deter unscrupulous conduct?

How is it a conservative principal to allow business to both 1) do as they please in the first place and 2) get away scott-free after the fact when they harm someone. It seems that all but the most ardent libertarian would agree that you need one or the other. It seems that the conservative position should be less regulation and more tort responsibility after the fact.

Finally, tort reform (as most often proposed) is nonsense. Losers pay. We do NOT want that. The little guy in tort cases cannot afford a lawyer and has to hire one on a contingency. That makes the halls of justice open to all. If the loser in all cases had to pay the winner’s fees, only the rich could afford to sue and the poor would be denied equal access to justice. Would a little guy take a meritorious but close case to court? No way. Now, frivolous lawsuits is another matter. If a lawyer brings a frivolous lawsuit, he should be ordered to pay the winner’s attorney fees, but guess what that has always been the law (See, Rule 11) Finally, damage awards caps — those caps have no impact on frivolous cases, as a frivolous case, if it is truly frivolous, will be winnowed out on demurrer or MSJ or directed verdict or the jury will find for the defense. Damage caps only impact high meritorious cases that have survived demurrers, motions for summary judgment, motions for directed verdict and convinced the jury of our peers that damages are warranted. Then the caps take the issue of damages away from the jury in a totally arbitrary way and deprive those most injured from fair compensation. Its good for insurance companies, but that is about it. It doesn’t seem very conservative to me.

tommylotto on August 22, 2011 at 1:10 PM

Link Fixed (See, Rule 11)

tommylotto on August 22, 2011 at 1:16 PM

I have practiced law for almost 3 decades and trial lawyers have completely besmirched what was once an honorable profession.

molonlabe28 on August 22, 2011 at 12:44 PM

You of course, understand that when I say I support hanging all the lawyers, I WASN’T including my own?

oldleprechaun on August 22, 2011 at 1:28 PM

“I’m all for peace, one carefully placed target trial lawyer at a time” — Rick Perry

This is a war I look forward to.

Barack Obama can’t walk on water. To a large extent, he’s a prisoner of fate. These times need a great man, and he is merely a good one. And now he’s acquired the most devastating label of all: President Wimp – someone who not only has no answers but lacks the killer instinct to strike back at his opponents. So don’t be surprised to see another Texas cowboy in the White House before long. He’s selling hope. And that’s what people desperately want.

From a ‘crying’ leftie.

Schadenfreude on August 22, 2011 at 1:29 PM

I know I may be a minority in my profession, but I think being a trial lawyer is a very conservative profession with a high regard for rule of law, tradition, personal freedom and personal responsibility

Most trial lawyers operate on teh business model of suing everything out and hoping to collect nuisance fee settlements and/or survive summary judgment and b.s. a jury w/ sympathy to get some money – regardless of fault for any accident. Anyone who claims that trial lawyers mull over a case and determine if their potential client is in the right, or if the defendant is truly at fault, has never been involved in the legal system. If a client walks through the door, unless he/she is obviously crazy, the lawyer is going to take the case and sue it out. The worst thing that happens is that the case gets dismissed. More likely, if it is a business being sued, the business will offer $1,000 – $5,000 (more in federal cases) just to make it go away, b/c attorneys fees just to get the case dismissed will easily dwarf that. And that is teh trial lawyers business model – it is basically legalized extortion.

citing to rule 11 is also a joke. First, it only applies to federal cases. Second, How many times does a court order the loser to pay the winners bills? Almost never! Less than .00000001% of the time. Are you honestly claiming that that is all the frivolous cases brought?

Considering how many cases are dismissed on motions to dismiss and summary judgment, that is hardly remotely the case. On a motion to dismiss it means that even taking what the complaint alleges as true, there is no claim. Why isn’t the lawyer forced to pay the defendants’ fees in those cases at least? the lawyer should have known when drafting the complaint. And on summary judgment, 9 time out of 10 the plaintiff’s attorney knew the case wouldn’t survive SJ, but sued it out anyway hoping for a settlement offer.

So the problem is that plaintiff’s attorneys don’t give a rat’s behind about wasting time and money of the Courts, the taxpayer or defendants. they take no responsibility to evaluating cases before bringing them. they simply claim to be honorable creatures defending the rights of the litte guy. Hogwash. Sure, a plaintiff’s attorney might get 1 meriticous case where they are doing a real service out of 20. But it is the 20 non-merit cases that they bring and settle or b.s. the jury that makes the plaintiff’s attorney money.

I would go for a hybrid loser pays – where if a case survives summary judgment, it does not apply. But any case dismissed on a motion should be eligible for loser pays – and the losing attorney who brought the case should have to pay part of that – say 15% to keep them honest. I would even allow for a standard on SJ – give the judge some discretion on whether to award fees to the winner on an SJ motion as there are some cases where one could not know until discovery is complete and/or the law is not well settled. But most of the time, the lawyer knows whether the case is going to survive SJ when they file the complaint.

I have yet to see a plaintiff’s attorney bother to make any kind of determination as to whether or not there is any merit to a case. they just sue it out and hope to get paid.

Unscrupulous businesses will always cut corners and take advantage of others or otherwise cause harm. That is just human nature.

is this not true of lawyers? won’t unscrupulous lawyers use the sytem to make money? using junk science and every other kind of theatric without regard to who actually bears liability? AFter all, once a lawyer takes a case, they want to win regardless of right and wrong.

And, let us not forget the liberal lawyer/judge, who constantly creates new ways to sue business through the common law. A statute begins as a narrow thing in many cases, and then the law “evolves” – somehow always creating more and more liability and allowing for more and more lawsuits and damages.

Monkeytoe on August 22, 2011 at 1:30 PM

Locally, we just did this for a Wal-Mart Super Center and about 40 other retail stores includidng grocery stores. It brought a lot of jobs but raised the sales tax by about 1.5% to 2%.

They did buy out the property owners and there was only one who took them to court. He would not accept any price for his dental practice which was in a residence. He lost in court and now has a brand new building and calls his business “Eminent Dentistry.” Some loss huh?

Vince on August 22, 2011 at 11:58 AM

Why on earth would a gov’t have to pay Wal-Mart to build? You do realize you’ve been swindled don’t you? If an area can support a Wal-Mart, it would build with its own money, as it is doing nationwide.

and using gov’t money to put in retail? That’s even dumber than using gov’t money to put in manufacturing jobs – which is what most states use such schemes for. this is the first I’ve heard of a state/locality using taxpayer money to put up a strip mall for minimum wage jobs held by teenagers.

I can’t even believe I heard that.

Monkeytoe on August 22, 2011 at 1:35 PM

Barack Obama has visited Texas many, many times during his 2008 campaign and since then.

It’s always to visit his trial lawyer contributors, though, and he always leaves with many millions of dollars.

(I *hate* using the term “trial lawyers” as a short-hand for “plaintiffs’ personal injury contingent-fee lawyers who may or may not actually ever go to trial and most often don’t.” But so be it.)

HOWEVER:

Perry’s last general election campaign was against my friend and former Texas Law Review colleague Bill White, ex-mayor of Houston, former Clinton undersecretary for Energy, and former partner in Houston-based Susman Godfrey, a powerhouse litigation boutique whose income derives in part, but far from exclusively, on contingent-fee litigation (although mostly in business rather than personal injury lawsuits).

White, wisely, did not make opposition to tort reform one of his main campaign platforms. But even though the plaintiffs’ personal injury bar in Texas contributed very, very heavily to White’s campaign, Perry still beat White like a rented mule.

Beldar on August 22, 2011 at 1:47 PM

Don’t confuse the term trial lawyer with the term personal injury attorney.

blink on August 22, 2011 at 1:42 PM

When anyone uses the term “trial lawyer” they mean “personal injury attorney.”

The Association of Trial Lawyers of America (which I believe has now been renamed to the American Associate for Justice) is an association of personal injury attorneys. You could not be a full-fledge member if you do not represent plaintiffs.

they confiscated the term “trial attorneys” even though there are plenty of other attorneys engage in trials (defense counsel, commercial litigation), b/c “plaintiffs’ attorneys” or “personal injury attorneys” had become toxic. Much like liberals are always looking for a new lable “progressive”, personal injury attorneys are always looking for ways to mask their profession through some kind of new label.

So, when someone says “trial attorney” they mean “personal injury attorney”. I’m not confusing the two.

Monkeytoe on August 22, 2011 at 1:48 PM

And if you’re really looking closely:

In about a week, on September 1, Texas’ latest tort reform legislation kicks in — what Perry and others have billed as “loser pays.”

To the extent it suggests that Texas is moving to a system like that of the U.K. or Canada, in which “court costs” are routinely defined to include attorneys’ fees and are routinely awarded against the losing side, that name is a real misnomer. The new legislation only slightly empowers trial courts to more aggressively sanction the worst of frivolous lawsuits. And it includes a great many other terms that will lay a thumb on the scales of justice, but not necessarily always in a pro-defendant way.

For example, “court costs” in Texas now may include expert witness fees and the expenses of deposition transcripts, both of which can quickly run into tens and even hundreds of thousands of dollars in all kinds of lawsuits, not just personal injury cases. Making those recoverable is a very, very substantial incentive to aggressive litigation, and because it changes the financial dynamics of cases that actually go to verdict and judgment, it will also change the financial dynamics of settlement negotiations in all civil lawsuits.

That’s why this latest so-called “loser pays” legislation actually got bipartisan support in the Texas legislature and the support of the plaintiffs’ contingent-fee personal injury bar. So whether this legislation, on a net basis, actually works out to encourage or discourage litigation is very much an open question.

Beldar on August 22, 2011 at 1:54 PM

“Trial lawyer” should mean “a lawyer who regularly takes cases to trial.”

It includes defense lawyers, both civil and criminal. It also includes prosecutors.

I am a trial lawyer who has tried many dozens of cases to jury verdict, some from the plaintiff’s side, some involving personal injuries, but mostly not.

The counterpart to “trial lawyer” is “litigator,” which adversary practice lawyers who hardly ever actually go to trial often use to describe themselves, thinking it’s an impressive term. Real trial lawyers regard such lawyers as easy targets when we exploit their fear of going to trial: we eat their lunches, drink their milkshakes, and manipulate them into settlements that are advantageous to our clients and disadvantageous to theirs. The adjective most often used by real trial lawyers to go along with the word “litigator” is “candy-ass.”

Trial lawyers go to verdict whenever doing so make sense; litigators settle, whether it makes sense or not.

Many plaintiffs’ personal injury contingent fee lawyers aren’t even litigators.

So if you want to use “trial lawyers” in political discussions, that’s fine. Just be aware that it’s a frequently misused and misunderstood term. You’re welcome to call me a trial lawyer, but please don’t ever call me a litigator.

Beldar on August 22, 2011 at 2:01 PM

TORT REFORM………TORT REFORM……….TORT REFORM.
THIS SHOULD BE A NATIONAL ISSUE. GET IT DONE. IT’S COSTING US BILLIONS A YEAR AND THE LAWYERS ARE MAKING OUT LIKE THE CROOKS THEY ARE.
We also need to immediately reduce the enrollment in all state supported Law Schools. We HAVE TOO MANY LAWYERS. And the QUALITY is dropping every year. Why make more when we have too many. Ever have a lawyer deliver what they promised on time???? DOESN’T HAPPEN.

TORT REPORM must be a focus of anyone running for President, Governer, Congress on down the line.

IlonaE on August 22, 2011 at 2:05 PM

@ monkeytoe: You write, “I have yet to see a plaintiff’s attorney bother to make any kind of determination as to whether or not there is any merit to a case. they just sue it out and hope to get paid.”

You’re not looking very closely, or not perceiving accurately what you’re seeing.

A plaintiffs’ personal injury lawyer who does what you suggest would be out of business within a matter of weeks.

The conventional wisdom of the contingent fee bar is that you make money off the cases you turn down. That’s not literally true, but it is definitely true for all practical purposes. Contingent fee lawyers are investing their time, and are fronting sometimes very substantial up-front expenses out of pocket, with the prospect of that entire investment (including associated opportunity costs) going down the drain with a bad verdict.

If you think insurance companies pay off like slot machines, you’re wrong about them too.

The adversary system punishes the stupid. Market economics affects these cases and the lawyers who deal in them. You’re letting politics cloud your perception.

Beldar on August 22, 2011 at 2:08 PM

This is like Irony or something, trail lawyers attack Rainmaker LOL!

We have lawyers running the country right now, hows that workin out for everyone? The progressives wouldn’t allow tort reform to be part of Obamacare….huh I wonder why that is Duh.

Dr Evil on August 22, 2011 at 2:10 PM

There are two groups attacking Perry now:

1. Liberal Media (MSM)/Dems – These seek to paint Perry as an extreme right-wing nutjob who is mentally unfit for the Presidency.

2. GOP Establishment and associated media groups – These seek to attack Perry as not sufficiently conservative and therefore dampen the enthusiasm the base has for him in the absence of Palin.

To the first group, Perry is as “extreme right wing” as Obama is “extreme left wing”, so deal with it. One wants to grow Govt, the other wants to shrink it. One’s policies has driven America down into the doldrums, the other’s policies has elevated a State to one of the most prosperous in America. One has reduced America’s credit rating, the other has raised his State’s credit rating.

To the second group who mostly support Romney: Perry is more conservative, more liked by the base, more dependable to enact conservative policies, and more likely to fight against the Establishment – so again, deal with it!

TheRightMan on August 22, 2011 at 2:20 PM

Charlie Chrst’s time to shine!
http://www.youtube.com/watch?v=-rcg_-8hB4E

mizflame98 on August 22, 2011 at 2:22 PM

If I were Perry, I’d have my staff count up one week’s total attack articles and ads against him. Then I’d hold a press conference and say “Obama promised to work night and day to get you new jobs. But instead last week he and his minions produced ____ articles and ads attacking me. That’s politics–not job creation. My suggestion to him is to work just half as hard on creating those jobs as he is on attacking me. If he does, I’ll bet we’ll soon have full employment.”

Dr. Charles G. Waugh on August 22, 2011 at 2:23 PM

Beldar,

I was a defense attorney for over 8 years. I perceive just fine and it has nothing to do with politics. I know plaintiff’s attorneys like to pretend they are out there fighting the man and taking only righteous cases, it is b.s. What happens is that plaintiff’s attorneys convince themselves that they are fighting noble fights and taking only meritorious cases. Who wants to tell themselves the truth – that they are working the system and taking money from good people to pay off bad people and skim a little for themselves?

Plaintiff’s counsel may turn down cases, but only those cases so bad that even they cannot bring themselves to sue it out – and even that incredibly low standard is diminishing all the time.

We can argue back and forth all day, but the statistic back me up.

something like 35% of cases are dismissed on a motion to dismiss. Another 40 – 50% are dismissed on summary judgment.

If that is plaintiff’s attorneys showing good judgment in bringing only meritorious cases, that is some pretty dumb trial attorneys.

And, most of the cases dismissed on SJ are not even close.

Perhaps plaintiff’s bar is significantly different where I practice from the rest of the country. But, I seriously, seriously doubt it.

Now, if it is a firm that does say 20% PI work and then does business litigation – then yeah, sure, they probably are more selective in cases they bring. But a true PI firm sues out just about every case that walks through the door. Otherwise the statistics would not be what they are.

You have to remember that with teh explosion of attorneys all of the attorneys who can’t find work turn to PI work. So the competition for the PI cases is fierce (just ask yourself how many local PI commercias you see/hear in a day – at least 1 every single commercial break radio and tv). Most PI attorneys can’t afford to turn a case down.

And what’s more – any case that some halfway decent PI attorney turns down gets brought by another PI attorney who is lower down the food chain. None of those cases end up not being sued out. There are just too many attorneys desparate for work and too many PI shops that operate on volume.

So, to argue that there is any standard regulating what cases are brought is simply untrue.

Monkeytoe on August 22, 2011 at 2:29 PM

So if you want to use “trial lawyers” in political discussions, that’s fine. Just be aware that it’s a frequently misused and misunderstood term. You’re welcome to call me a trial lawyer, but please don’t ever call me a litigator.

Beldar on August 22, 2011 at 2:01 PM

I’m using trial lawyer as it is commonly understood – at least in NY. In NY it is commonly understood to mean personal injury attorney, both in the legal profession and out. If you are speaking with attorneys and use the term “trial lawyer” they know you mean personal injury attorney.

Nobody here uses “trial lawyer” to refer to lawyers who “go to trial”. I have tried many cases and have never referred to myself and nobody else has ever referred to me, as a trial lawyer. I’d take it as an insult to be called a trial lawyer. Here, anyone who tries cases and is not a personal injury attorney call themselves “litigators”.

So, I guess it is regional whether or not trial lawyer is used to mean plaintiff’s attorney. Except I note that the national media, and plaintiffs’ attorneys themselves, use the term “trial lawyer” to mean personal injury attorney.

Monkeytoe on August 22, 2011 at 2:34 PM

Democratic Houston trial lawyer Steve Mostyn – who, along with his wife, Amber, donated nearly $9 million to Texas candidates and party committees in the 2010 cycle – said he’s in the process of forming “some federal PACs” to take on Perry.

He’s quite the political player: $9 million donated, and a string of electoral losses in 2010. Just about every horse he backed went down to defeat.

Vashta.Nerada on August 22, 2011 at 2:47 PM

Most trial lawyers are democrats and contribute to democrat causes. Most trial lawyers are little more than parasites.

Causation or correlation? You decide.

locomotivebreath1901 on August 22, 2011 at 3:24 PM

tommylotto on August 22, 2011 at 1:10 PM

Way back in 85 when I finished my Masters in Project Engineering I had to take a class on Human Factors Engineering. About 1/2 the class dealt with what companies had to do to avoid the tort bar. Much of it was to protect themselves from idiots that misused the equipment and then sued (sticking your hand in a blender, spilling hot coffee on yourself while driving and so on and so forth). I haven’t seen an improvement in the situation since then. And don’t get me started on so called public nuisance laws. So you’ll have to excuse me if I call BS to much of your position on this. It is one thing to hold a company/person accountable for cutting corners but to hold whoever has the deepest pockets accountable for the stupidity of others is beyond the pale.

chemman on August 22, 2011 at 4:45 PM

I’m a Palin man, but if the tort lawyers hate Perry then he certainly has my vote.(if she doesn’t run)

Don L on August 22, 2011 at 6:20 PM

monkeytoe: Sounds to me like you might, for a time, have been a “litigator.”

I still *am* a trial lawyer, and have been for 30 years. I’m board certified in civil trial law.

And my perception is very different from yours, so one of us is full of it.

Beldar on August 22, 2011 at 6:28 PM

Aw, I’m sorry. That was ill-tempered of me.

Look, I’m not trying to get into a pissing war with you over credentials. (Although I’m on pretty strong ground there, and I dunno one way or the other about you.)

But your assertions are overblown. There are very, very substantial economic disincentives to bringing cases that have no merit at all, and contrary to your apparent assumption, those cases don’t turn into windfalls.

Your argument would make sense only if defendants and their attorneys are brain-dead slot machines that pay off without reference to the strength of the underlying cases.

If you really were a defense lawyer — and that’s how I started my career too, in both personal injury and commercial cases (I was previously board certified in both areas) — you’d understand that defense lawyers earn their money and they’re by no means, as a class, incompetent.

I practice in Texas, which during the course of my 30 years has gone from being one of the most pro-plaintiff jurisdictions in the United States to the exact opposite. When I pick juries down at the Harris County Civil Courthouse these days, my venires are full of solid citizens who view their jury summonses as chances to strike a blow for tort reform.

The picture you’re painting is one-dimensional and contrary to basic economics. I just think you’re missing the point, but I’m sorry for being rude.

Beldar on August 22, 2011 at 6:44 PM

(And yes, there are genuine “trial lawyers” on the defense side, even in New York — although most New York lawyers I’ve met are mere “litigators.” My former partner Jim Quinn at WG&M, for example, is a genuine “trial lawyer.” But he’s an exception.)

Beldar on August 22, 2011 at 6:49 PM

Q: What do you call 50 dead PI lawyers at the bottom of the ocean?

A: A good start.

SagebrushPuppet on August 22, 2011 at 7:13 PM

SagebrushPuppet on August 22, 2011 at 7:13 PM

Sure was cold the other day!

How cold was it?

It was so cold I saw a lawyer with his hands in his own pockets.

hawkdriver on August 22, 2011 at 7:25 PM

If the trial lawyers (and ipso facto: crr6) are against him, then he has the inside track with me!

Khun Joe on August 22, 2011 at 7:47 PM

We beat those scumbag trial lawyers in Texas to bring about good government. We’ll beat those sleazes nationwide, too.

WannabeAnglican on August 22, 2011 at 7:59 PM

Now Perry is getting Palinized? Who would have thunk it? /sarc

Palin 2012. ;o)

DannoJyd on August 22, 2011 at 9:09 PM

We’re not all bad…

Lando Jones on August 22, 2011 at 10:18 AM

The exception, YOU, strengthen the rule :)

Still, good on you!

Schadenfreude on August 22, 2011 at 9:14 PM

monkeytoe: Sounds to me like you might, for a time, have been a “litigator.”.

Beldar on August 22, 2011 at 6:28 PM

I was going to say that. It sounds like he worked minor slip and fall or fender bender cases and never worked on a case with serious liability.

Btw, I think tommylotto is from NY, but I don’t think he was using the term trial lawyer to mean personal injury attorney. So, maybe your disagreement with him is merely about terminology.

blink on August 22, 2011 at 2:58 PM

Actually, I practice (regularly taking cases to trial FWIW) in CA, that progressive dream state, which, by the way has always had strict tort reform that would make Perry proud. We have always had either CCP §§ 128.5 or 128.7 where a case deemed to be frivolous can result in the attorney bringing the action paying sanctions equal to the opposing party’s attorney fees. We also have MICRA signed by Gov. Brown in 1975 during his first go around that caps Med Mal. general damage awards to $250,000 — an amount that has not increased one dime in 36 years. When you get a real live victim like a widow client of mine who lost her husband because his treating doctor was literally too busy to poke his head in and walked right past the O.R. where his patient was going code blue because the doctor had a plane to catch, you will see things differently. Her general losses were capped at $250,00 by a legislature 36 years ago and regardless of what the jury valued their loving relationship at, the cap is all that she can ever get. Instead of the amount of damages being determined by a jury of our peers, like our common law forefathers intended, the damages have been predetermined by legislators in polyester bell bottoms and fat ties.

tommylotto on August 22, 2011 at 9:17 PM

He pushed through a final 2003 reform act that made Texas a model for tort reform,

Okay, I don’t trust this weirdo for a dozen reasons, but I’ll vote for him just for that.

elfman on August 22, 2011 at 9:36 PM

tommylotto on August 22, 2011 at 1:10 PM

Of course, Rule 11 is from a broken “self policing” system. Who determines what is vexatious litigation?

unclesmrgol on August 22, 2011 at 10:26 PM

monkeytoe: Sounds to me like you might, for a time, have been a “litigator.”.

Beldar on August 22, 2011 at 6:28 PM
I was going to say that. It sounds like he worked minor slip and fall or fender bender cases and never worked on a case with serious liability.

You 2 are ambulence chasers it sounds like to me. I know, I know, you are noble, fighting for people’s rights and every case you sue out has merit and the defendant is evil and greedy and deserves to pay.

Whatever helps you sleep at night. I hear an ambulance – you should start running. Make sure you have a card to give to the injured person.

As far as serious cases, I’ve had many death cases, including police shootings, car accidents, costruction accidents and the like. I’ve never handled a medmal case. I defended in that scam business of asbeostes litigation, where 85 year old men who smoked 2 packs of unfiltered camels a day and now have some “shortness fo breath” (and who were sought out as plaintiffs by the plaintiffs’ firm, put through x-rays etc., shown books of products to identify, etc). Sure, about 1 in 1,000 plaintiffs had mesothelioma and that was a real case. Teh vast majority were absolute b.s. cases “pleural plaque” and other nonsense. Is that the type of noble non-frivolous lawsuit you are defending?

Do you defend these firms? How about John Edwards type litigation that relied entirely on junk science to bilk millions out of companies? Is that the noble stuff you are talking about?

Are you really coming on here claiming that PI firms don’t file frivolous lawsuits, use junk science, and basically work the system as a money making scheme rather than justice?

. I’m board certified in civil trial law.

And my perception is very different from yours, so one of us is full of it.

Beldar on August 22, 2011 at 6:28 PM

“Board Certified”? Well heeeee haw! Good for you. Your perception? You deny that just about every case turned down by one PI attorney is not brought by some other PI attorney? You claim that PI attorneys don’t compete desparately for cases? That there aren’t levels of PI firms/attorneys?

You may be from a higher level firm that handles things like medmal, or construction accidents and take only decent cases both on facts and law.

Most PI firms advertising on TV take car accidents and slip and falls and are not picking/chosing which cases to take not take and/or sue out or not. Spend a few years defending municipalities or small businesses and you will see that the vast majority of cases brought are beyond frivolous. And these PI firms work on volume – they sue everything out and get tons of small nuisance value settlements and hit a few decent sized settlements and an occasional big award. That is the business model. there is no nobility, or professionalism, or justice in teh model. It is a pure money making model using the legal system to skim money from businesses/insurance/whoever. Whatever justice these firms help create is a by-product, not the firm’s purpose.

Moreover, if what you claim is true about all PI attorneys being noble bringers of justice who work diligently to bring only non-frivolous cases, then you should have no problem with loser pays, b/c according to you PI attorneys are being judicious in what cases they bring.

Someone can only be upset with the idea of loser pays if they know the vast majority of cases being brought by their firm, them or other PI attornes are frivolous/meritless cases that should not be brought.

All lawyers love to pretend that they are noble, that what they do is noble. It is a business. Nothing more, nothing less. You don’t chose your cases b/c of nobility. You want to make money – just like anyone else. A lawyer doesn’t look at a case and say “what is the right thing here? what is justice”? A laywer looks at a case and says, can we make money on it.

Sure, there are a few ideological non-profit organizations that pursue cases based on what that particular group considers “just” and not money. But that is not what law firms do.

Monkeytoe on August 23, 2011 at 12:25 PM

Your argument would make sense only if defendants and their attorneys are brain-dead slot machines that pay off without reference to the strength of the underlying cases.

You fail to understand the economics of it. If a business can spend $5,000 – $10,000 paying me or some other attorney to put together a motion to dismiss, or pay $1,000 nuisance value to make the case go away, which makes better economic sense?

Sure, some companies (particularly insurance carriers) will spend the money to fight out every case b/c they don’t want to see an increase in cases brought against them. but even those bigger companies will make economic decisions on cases and pay nuisance value more often than not. And, most smaller companies don’t have the luxury to do that.

From the PI mills perspective, if they have cookie cutter complaints and face no consequence for a case getting dismissed, what is the cost of suing every case out? their paralegals handle most of the paper discovery and they can let the loser cases sit if they don’t get a nuisance value settlement offer.

thus, it appears that it is your perception that is skewed, not mine. Your perception would make sense if the PI firm had to spend 100s of hours on every case they sue out, thus taking time away from more profitable cases.

Taht is not reality. They can sue out and let it sit. The company sued, on the other hand, needs to get the liability off their books for various business reasons. One way to do that is to make a motion to dismiss if you can get rid of it on the pleadings. That is not always possible, even if a case is completely frivolous.

so, the next step is to pay an attorney to exchange documetns, conduct depositions and put toghter an SJ motion. which can cost tens of thousands.

It sounds like you have been practicing for a long time and think the legal profession is still the same as it was back in 1970. It isn’t. It is seedier and just a business now. PI firms are nothing more than mills – churning out cases.

Like I have stated repeatedly, there are levels of firm/attorney. I’m sure you are judicious in what you are willing to sue out. That doesn’t mean all attorneys/firms are.

And to claim teh economics is against suing out frivolous cases is 100% incorrect. It is the exact opposite.

And, stop with the condescention. I’m not “starting out my career”. I was an Army JAG, I have practiced with a very large firm for a number of years and am practicing with a small botique litigation firm now involved mostly in commercial construction disputes and surety work. (around here “trial attorney” is an insult b/c it means personal injury attorney).

I know what I am talking about having seen it first hand in 3 different states. the idea that the plaintiffs’ bar is self-policing is completely off-the-wall. that is why tort reform is needed.

Monkeytoe on August 23, 2011 at 12:40 PM

Monkeytoe on August 23, 2011 at 12:25 PM

You speak in generalities and lack perspective.

You do not understand why and how our justice system is suppose to work.

In every quasi-example you referred to, the defense was represented by competent defense counsel that hired impressive experts with PhD’s and decades of clinical experience. Our system relies on two sides zealously advocating for their position using all the ethical tricks in the book to get the best possible result for their side. Both side try for a result in favor of their client which is better than what objective justice would probably require. In some cases, due to superior lawyering, the plaintiff is awarded more than he or she deserves, in others less. Our wise forefathers determined that this robust debate this adversarial system best serves justice in the aggregate, and I believe our forefathers were right and our justice system, though flawed, it the best system out there.

That same robust adversarial system also requires that each side bear their own fees. Many lawsuits are close calls and the little guy with a good claim, not a great claim, but a good claim would be hesitant to bring it because to do so would be to risk bankruptcy. That would tip the scales of justice too far towards the big guy. Finally, would you agree that what is good for the goose is good for the gander? In many PI cases, liability is admitted, only damages are disputed. Shouldn’t that prevailing plaintiff be awarded their fees too? Then every rear-ender would become an attorney fee case. There is possibility for abuse under both systems. The best solution is a self regulating system where cases deemed frivolous by the judge results in sanction on the attorney bringing it — rule 11, CCP 128.7. We already have it. Your dispute should just be limited to the implementation of these rules and what is deemed frivolous. However, if you read the cases discussing those rules and the definition of what is frivolous and the reasons for those decisions, you would probably agree.

tommylotto on August 23, 2011 at 1:00 PM

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