According to a story in the Houston Chronical (also reported on in the New York Times), Texas tort reformers are at it again. On the horizon in the Texas Legislature this year are several bad and unneeded “reforms”. One law being proposed is called “loser pays”. It is an old idea with a deceiving moniker. The law, as proposed in a draft by Governor Perry, would make the person who brings the lawsuit pay for the expenses and attorney fees of the other party if they ultimately lose their lawsuit. That might sound fair to some, but the law is one-sided. The only time the loser pays is when the loser is the plaintiff. If the loser is the defendant, which is the case in a majority of lawsuits filed, the defendant is not required to pay expenses and not required to pay the winner’s attorney fees. Not anyone’s idea of fair. But fairness is not the point.
The law is being proposed as a measure to stop frivolous lawsuits. In the Times article, a professor at the UT School of Law said no serious studies on frivolous lawsuits have found that frivolous lawsuits are a real problem. If the law is a solution to a non-existent problem, why are taxpayer dollars being wasted on this issue. It is time for the politicians to get back to work and quit raising the lawsuit boogeyman promoted by insurance and business interest. These special interest groups raise this issue every couple of years to promote their goal of limiting their personal liability and ultimately to shirk their personal responsibility to average citizens.
“Loser pays” is a measure designed to put fear in the heart of the average person who wants to assert their right to seek justice and make a claim. Any attorney the claimant consults with will be required to tell the claimant that if there is an unjust outcome and they lose the case, they will owe the defendant their attorneys fees. Even when someone feels they are right, they will be reluctant to bring a suit, out of fear that an already bad situation could possibly be made worse. This is the response business and insurance lobbyists are looking for in this measure. But business and insurance interests will never have that same fear, because the proposal does not ask them to pay costs if the person who brings the suit is successful.
Texas is also looking at regulating attorney fees. We all know that big businesses and insurance companies can hire any lawyer they want. In fact many insurance companies have lawyers on their payroll. A regular person sometimes can’t afford to hire an attorney. Contingency fees make it possible for the little guy to get legal representation on par with what big businesses can afford.
Texas legislators want to cap contingency fees at a low-level. Free enterprise is the cry of every legislator who would push this kind of bill and no one is suggesting a cap on what insurers and big businesses pay their lawyers. But it is ok to limit what kind of representation the little guy can receive, while encouraging the deep pockets that would obstruct access to the system. Think what would happen if the NBA decreed that half of the teams can pay as much as they want for their players and put a cap on what the other teams could pay. Not a fair system. But fairness (justice) is not the goal.