Shannon K. Dunn 2016-11-24 11:53:48
Taking a Look at Tort Reform The story of tort reform in Texas begins with the power of language. As it’s told in Stephen Daniels and Joanne Martin’s Tort Reform, Plaintiffs’ Lawyers, and Access to Justice (University Press of Kansas, 2015), self-described reformers successfully used precisely targeted language to paint the civil justice system as the root cause of a society where “‘doctors shuttered their practices, small towns went without medical specialists, and small businesses lived in fear that a single lawsuit would shut them down.’” One hearing this might wonder how Texas survived the pre-tort reform era. In their book, Daniels and Martin argue that these reformers’ focus on the public perception of injured plaintiffs and the lawyers who represent them ended exactly where it was always intended to end—in Republican-backed legislative changes to Texas’ civil justice system; a Texas Supreme Court almost preternaturally predisposed to look askance at plaintiffs’ claims against physicians, insurance companies, and big businesses; and jurors who view “soft tissue injury” and “pain and suffering” as code words for “frivolous lawsuit.” Daniels and Martin’s conclusion that tort reform limits access to justice—they nearly always put the word “reform” in quotation marks—is pointedly data-driven; their stated intent was “to provide a different and critical perspective grounded in the insights of political science; informed by the best work in the law and social science literature; and based on extensive, systematic empirical research.” To that end, they surveyed and interviewed hundreds of plaintiffs’ attorneys across Texas between 1995 and 2006, many of whom have been forced to curtail or even close their contingent fee practices as one revenue stream after another dries up. Despite this bleak picture, the authors’ emphasis on “the entrepreneurial spirit” and professionalism of the majority of Texas plaintiffs’ attorneys offers at least some cause for hope that meaningful access to civil courts will survive the tort-reform era. That emphasis begins with a lively history of the development of the plaintiffs’ bar in Texas, which, even in its infancy, boasted attorneys like one who described his job as “you come to work every morning and you start looking at these files and thinking of them as people, and you decide, I’m going to do every goddamn thing I can for this guy.” Daniels and Martin then segue into a statistical analysis of the professional attitudes and choices of today’s plaintiffs’ bar, on topics ranging from attorney advertising and referral practices to client intake and evaluation. The final third of Tort Reform applies the results of the authors’ research to a discussion about how both “bread-and-butter” and “heavy hitter” personal injury attorneys have modified their practices in response to the changing landscape and how those changes have affected plaintiffs’ access to justice. As Daniels and Martin emphasize, “For access [to the courts] to be meaningful, to be anything but window dressing, a person needs a lawyer.” But according to the authors, lawyers, especially good lawyers, are not cheap, and the “reform” spirit prevalent in the Texas Legislature and judiciary in recent decades has forced plaintiffs’ attorneys to recalibrate their evaluation of the risk, cost, and reward of each new case that comes through the door. SHANNON K. DUNN is an associate of the Law Office of Beth Watkins in San Antonio. She primarily focuses on plaintiffs’ side civil appeals.
Published by State Bar of Texas. View All Articles.
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