State Representative Allen Vaught, an Iraqi war veteran and one of the bright, young stars of the Texas Democratic Party, is a trial attorney. Over the final months of a hard-fought re-election, Vaught's peers gave generously to his campaign. Baron and Budd, which mastered the lucrative art of asbestos litigation in the 1990s, handed the East Dallas lawmaker more than $5,000, while Mikal Watts, who amassed his fortune suing Ford and Firestone for tipsy SUVs, chipped in $10,000.
Meanwhile, as Vaught was trying to hold off Republican challenger and one-time incumbent Bill Keffer, he had a trial lawyer advocacy group help run his campaign. Texans for Insurance Reform, which is bankrolled by some of the wealthiest litigators in Texas, received more than $60,000 from Vaught for helping manage surveys and direct mail.
You might then expect Vaught, who eked out a tight victory over Keffer, to be a staunch ally of the plaintiff's bar in the Legislature. Instead, Vaught supported two key pieces of tort reform during the last legislative session—including one that could adversely affect his own practice. The 37-year-old incumbent, meanwhile, has shown no interest in revisiting caps on damages in medical malpractice cases. Maybe that's why the Democratic lawmaker received the endorsement of TEXPAC, the political arm of the Texas Medical Association, an eternal foe of state trial attorneys.
"Every measure that came before the House that was 'quote end quote tort reform,' I voted for," Vaught says. "Do I get contributions from trial lawyers? Yes, I do, but that doesn't affect whether I will do the right thing."
Were it not for their sprawling mansions, ski homes and young blond brides, Texas' high-dollar trial lawyers would be a rather pitiful bunch. While wealthy attorneys like the late Fred Baron helped bankroll a resurgent Texas Democratic Party, as a group they still don't have much sway in Austin. With the new legislative session just one month away—and with the issues like toll roads, school funding and the fate of the Texas Youth Commission grabbing headlines—no one expects Democrats to revisit any of the major state laws that restrict how we litigate. So for now, trial lawyers will be happy if Texas Dems can just block new bills that affect how they practice law.
"I'm not sure that tort reform or the rolling back of tort reform is on the top of too many people's agenda," says Democratic state representative and corporate attorney Rafael Anchia, whose district covers West Dallas County. "I'll tell you, nobody's come to see me about it on either side. Usually, you would have sensed a little activity by now."
Oddly though, during the campaign season, trial lawyers were writing checks as if they were funding an action movie. Watts, the South Texas litigator, gave an astounding $100,000 to Chris Bell's losing state Senate campaign. He also donated another $25,000 to state Senate candidate Wendy Davis, who went on to upset the Republican incumbent. Texans for Lawsuit Reform, an Austin-based advocacy group that battles and usually beats up on the plaintiff's bar, estimates that the state Democratic Party received 87 percent of its funding this year from Texas trial attorneys—a figure that Democrats don't really dispute.
So what exactly do trial lawyers expect from their friends in the Democratic Party? Sherry Sylvester, the spokesperson for Texans for Lawsuit Reform, says that they have a mission even if they haven't trumpeted it through the halls of the State Capitol.
"We've not seen any specific bills that they've filed so far, but we know they have spent millions in this election cycle and they have an agenda to roll back lawsuit reform," she says. "We could see them attacking the caps on medical liability or rolling back venue reform."
In fact, trial lawyers seem to have a more modest game plan. Nelson Roach, the president of the Texas Trial Lawyers' Association and one of the Democratic Party's most prolific donors, says that his group does hope to revisit caps on pain and suffering damages in medical lawsuits. Though he would like to abolish those caps altogether, he'd settle for at least tying them to inflation.
Paula Sweeney, the past president of the Dallas and Texas Trial Lawyers' Associations, adds that she thinks the Legislature might undo a few procedural road blocks to filing a lawsuit. For example, she says that in medical malpractice cases, a plaintiff has to have a report from a doctor within 120 days of filing suit and then serve the defendant with it. As the law is written, she says, a plaintiff's suit can be dismissed with prejudice if that report is sent by regular mail—as opposed to certified—even if the defendant has it in his hands.
"Everybody can agree that is a completely asinine, unjust, idiotic interpretation of the statute," she says. "That is something that can be easily fixed."
Though trial attorneys are usually a confident bunch, few of them expect Democrats to take a fresh look at House Bill 4, the landmark legislation that established caps on pain and suffering damages and made it harder for plaintiffs to seek out favorable judges. Passed in 2003 and enshrined in the Texas Constitution later that year by a referendum, advocates credit the bill for lowering malpractice rates and luring new doctors to Texas. That was the chief selling point of tort reform in the first place.
The jury is still out, so to speak, on the effects of HB 4. Last year the Texas Observer reported that as of September 2007, the number of counties without obstetricians remained unchanged from before the bill became law.
But tort reform remains sacrosanct in Texas. As Democrats waged tough races against Republicans throughout the state, they largely campaigned on better schools, cleaner air and ethics. They didn't bring up issues near and dear to trial lawyers, even as they cashed their checks.
Still, tort reform covers a wide swath of the law, and for every common-sense initiative there are others that do little more than give special protection to well-connected corporations. Democrats have helped block some of these bills, which may be all trial lawyers expect of them these days.
In 2007, the House Civil Practices Committee considered HB 1927, which sought to grant civil immunity to manufacturers and sellers of MTBE, a dangerous fuel additive banned by 20 states. The bill could have had local implications. In 2004, the city of Dallas reached an $8 million settlement with operators of a pipeline that leaked fuel into a lake. According to The Associated Press, the fuel contained MTBE, and Dallas was forced to spend $14 million to build a second water line to Lake Ray Hubbard.
Some of the heaviest hitters in the energy business lined up in support of HB 1927, including Dow Chemical, Marathon Oil and Shell Oil. Texans for Lawsuit Reform, which has carried the banner for tort reform and endorsed like-minded candidates, also backed the bill. HB 1927 ultimately withered away and never made it to a floor vote.
"When they say tort reform, what are they talking about?" asks Vaught, who opposed the measure. "Are they talking about simple measures to make the justice system fair, or are they trying to incentivize corporate greed and corporate misconduct?"
Even if the options are rarely that stark, tort reform measures are often more complicated than they seem. If Democrats can recognize that and block the occasional immunity bill, the state's most powerful litigators will likely be satisfied—at least for now. Roach says that the collapse of the financial markets has crippled the original premise of tort reform—that corporations operate most effectively with little oversight and attention. Now he thinks that his side can finally start winning in the one venue where they've never fared well—the court of public opinion.
