Skip to comments.Trial lawyers prep for war on Perry
Posted on 08/22/2011 1:48:24 AM PDT by Cincinatus' Wife
Americas trial lawyers are getting ready to make the case against one of their biggest targets in years: Texas Gov. Rick Perry.
Among litigators, there is no presidential candidate who inspires the same level of hatred and fear as Perry, an avowed opponent of the plaintiffs bar who has presided over several rounds of tort reform as governor.
And if Perry ends up as the Republican nominee for president, deep-pocketed trial lawyers intend to play a central role in the campaign to defeat him.
Thats a potential financial boon to a president who has unsettled trial lawyers with his own rhetorical gestures in the direction of tort reform. A general election pitting Barack Obama and Perry could turn otherwise apathetic trial lawyers into a phalanx of pro-Obama bundlers and super PAC donors.
If this guy emerges, if hes a serious candidate, if he doesnt blow up in the next couple weeks, its 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 dont 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 hes 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.
Mostyn said his political spending wouldnt just center on the trial lawyers agenda.
The legal issues are important and near and dear to my heart, Mostyn told POLITICO. But more important is the myth that were doing great down here, when were not. Were falling behind the rest of the country, and the country is falling behind the rest of the world.
But the legal issues, as Mostyn calls them, are far more than incidental to the hostile relationship between Perry and trial attorneys.
The governor has pushed through a string of tort reform laws, including a 2003 measure putting a monetary cap on non-economic damage awards. He passed another law in the most recent Texas legislative session, making it easier to dismiss some lawsuits and putting plaintiffs on the hook for legal costs in certain cases that are defeated or dismissed.
The campaign for tort reform in Texas began in the 1990s, well before Perry was governor, but the Republican can legitimately claim some credit for the results. Its a story Perry proudly tells on the stump, casting himself as the man who mastered a legal system run amok and made Texas friendlier for business.
He lists tort reform among the core economic proposals of his presidential campaign and mentioned it in his announcement speech. On a Friday visit to a Florence, S.C., hospital, Perry recalled that back in the 80s and 90s, Texas was a very litigious state, but now: We passed the most sweeping tort reform in 2003 and it still is the model in the nation.
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 its a very bad place now, Coale said.
If Perrys the nominee, the trial lawyers will come out of the woodwork to support Obama, where I dont know that they would now, he predicted. Most of the guys I know dont like [Obama], think hes screwed up the economy or taken Bushs bad economy and made it worse. But when your livelihood, your moneys on the line, it concentrates the mind.
While trial lawyers are more influential in state politics than federal or presidential politics, they have a potentially enormous well of money at their disposal if they decide to mobilize. The American Association for Justice formerly known as the American Trial Lawyers Association has given some $34 million to candidates since 1990, according to the Center for Responsive Politics. Eighty-nine percent of that money has gone to Democrats.
The trial lawyer community last engaged on a grand scale with presidential politics in 2004, when John Edwards himself a former trial lawyer ran for president. The top employers to contribute to his campaign included numerous plaintiffs law firms. Near the top of the list was the Texas-based outfit Baron & Budd, led by the late Fred Baron, who chaired Edwardss campaign and ultimately ended up at the center of the former North Carolina senators campaign finance scandal.
As strongly as trial lawyers backed Edwards in 2004, their involvement in 2012 could be even more intense as they mobilize against Perry. And the governors campaign knows it.
Perry spokesman Mark Miner said the campaign was fully prepared to engage a fight with trial attorneys on a national level, saying plaintiffs lawyers feed off the system and inhibit job creation.
Of course theyre going to scream and shout when they feel that someone like Gov. Perry is standing in the way of them lining their pockets, Miner said. Theyve been active through all the governors races, to no effect. Steve Mostyn has poured millions of dollars into campaigns against the governor for nothing.
There are also interest groups that favor tort reform that could back up Perry in the presidential race, including pro-business organizations like Americans for Job Security, which counts Perry adviser Dave Carney among its co-founders.
AJS president Stephen DeMaura noted that the group spent money advocating for the most recent round of Texas tort reform, and might be prepared to lay out money in the presidential race.
If the trial lawyers decide to take this as a national issue, he said, anything is possible.
Trial attorneys outside Texas said its still too early to predict exactly what form their involvement with the 2012 race would take. But to a man and woman, the lawyers who spoke to POLITICO were acquainted with Perrys record in Texas and vehemently critical of it.
C. Gibson Vance, a former president of the Alabama Association for Justice, a trial lawyers group, said the plaintiffs bar would absolutely sit up and take notice of a Perry nomination.
Its clear from Gov. Perrys record in Texas and the early part of his campaign that he is not a friend of the civil justice system, Vance said. It would be very difficult, in my opinion, for a trial lawyer to support such a candidate.
Dallas attorney Mary Alice McLarty, the incoming president of the American Association for Justice, vowed: I hope he doesnt get the nomination, but I will support candidates against him.
Lawyers around the country would feel that the Seventh Amendment and other states rights would be on the table, she said, referring to the constitutional right to a trial by jury.
Perry has been vague about exactly what kind of tort reform hed like to see on the federal level, and said he wouldnt want to impinge on states rights. Trial lawyers arent so sure that Perry would hold back if given the opportunity to attack their profession on a grand scale.
Though the immediate interest for trial lawyers would be halting tort reform and one of its most prominent champions on the national stage, attorneys familiar with Perrys Texas record also say that his struggle with the legal system could be an effective lens for portraying the governor as a tool of corporate interests.
Even as trial lawyers have donated generously to Texas Democrats, Perry has received ample support of his own from insurance companies, builders and other business groups that have much to gain from limiting high-dollar litigation.
South Carolina Democratic Party Chair Dick Harpootlian, a Columbia-based trial lawyer, said the Texas tort reform wars show where [Perrys] loyalty lies: with the big corporations and the insurance companies.
He has done everything in his power to make sure that an individual who is wronged by a big corporation or an insurance company cant go to court, cant afford to go to court, Harpootlian said. Corporations dont locate to Texas because of tort reform, because of this idea that they wont be sued. They locate to Texas because labor is cheap and Rick Perrys not doing anything to protect the average working men and women.
And California trial lawyer Joe Cotchett alleged some hypocrisy in Perrys record, saying that while the governor has a habit of publicly attacking the courts, he has fewer compunctions about using lawsuits to flood the courts with attacks on gun control laws, environmental protection laws, safety laws and attacks on the SEC [Securities and Exchange Commission] to loosen restrictions on Wall Street.
Its easy to imagine any of those lines becoming part of a national campaign against Perry. His own team, however, sees the issue in simpler terms.
Said Miner, the Perry spokesman: Its about creating jobs versus lining trial lawyers pockets.
Rick Perry knows to have jobs you need an environment that is welcoming to employers.
FIRST: "Don't spend all the money!"
SECOND: "Have a fair and predictable tax and regulatory policy!"
THIRD: "Have a legal system that doesn't allow for over suing and make loser pay!"
If he is against trial lawyers he can’t be all bad.
The Money Trail
A clear, straightforward system for reporting campaign finance contributions is essential to the publics ability to participate knowledgeably in elections. The Texas Legislature has established the framework for such a system and the Texas Ethics Commission maintains it. When transparency is missing, or the contributions and disclosures are concealed, the public is not aware of the significant contributions impacting a particular race ... and the public should know.
This report focuses exclusively on contributions by plaintiff lawyers to state officeholders and candidates. These lawyers, however, are major players in federal elections and local and county races. As such, a broad discrepancy exists between the influence trial lawyers wield in our political system and their revealed financial activities.
Further complicating any attempt to chronicle the size and scope of political involvement by plaintiff lawyers is a myriad of political action committees through which they funnel money. Innocent sounding names disguise the fact that these PACs are actually additional trial lawyer conduits. Several of their surrogates include: Texas 2000, Constitutional Defense Fund, the Carl A. Parker PAC, and the Lone Star Fund.
These PACs serve a dual purpose for the plaintiffs bar: They conceal from the public and the casual observer that the funding for specific campaigns originated with trial lawyers. And, they make it almost impossible for researchers to definitively link the source of contributions with its ultimate recipient.
A Single Interest
The plaintiffs bar consistently portrays itself as the champion of the little guy. The advocate of the average citizen who has been injured, swindled or taken advantaged of by business and without whose legal assistance grievous wrongs would remain uncompensated and harmful corporate practices would continue.
This characterization is inaccurate because it conveniently paints an incomplete picture.
In reality, plaintiffs attorneys look to file lawsuits against large corporationsthey invariably go after the deep pockets. The hysteria over moldand its consequential increase in home insurance ratesis the latest in a long line of trial lawyer targets. Next in their sights: fast food restaurants.
The wealthiest plaintiff lawyers hunt constantly for new areas of litigation, and the more potentially lucrative the better. With the little guy out in front, these trial lawyers use the law and our courts to mine corporations for personal financial gain.
Don’’t forget that the trial lawyers here will be against him too.
Yes....and the “crony capitalist” pundits too.
Bring them on!
Perry’s ready for this fight.
With a few exceptions, plaintiff's lawyers are scum, but if Rick Perry pushes for tort reform at the federal level (which the article hints at as a possibility), that would make Perry pretty scummy as well. There's no constitutional basis for the federal government enacting tort reform that would cover state courts. If we're talking about tort reform in federal courts then there's no constitutional impediment, but federal courts are already far less friendly to state courts.
I strongly admire what he did in Texas when it comes to tort reform. I wish New York had similar reforms. That said, he'd better not try to push similar reform on all state courts through Congress. He seems to me to be pretty strong on states rights and the Tenth Amendment, so I do hope the article is incorrect when it alludes to the possibility of Perry trying to implement federal tort reform.
I remember when President Bush stepped on the Tenth Amendment in 2004. I'm one of the biggest supporters of gun rights that you'll find, but President Bush signed a bill that gave firearm manufacturers and dealers immunity from federal lawsuits. It was completely unconstitutional and stripped states of the rights to govern their own court systems. The NRA, of which I am a member, pushed it because they care more about protecting gun manufacturers/dealers than they do about respecting our constitutional system of government. One of the key tents of our federalist system is that matters like this are left to the states. Texas has done a good job implementing tort reform. New York has not. New York loses jobs to Texas because of that fact, and that is a good thing, because the states should compete against each other. What made Bush's decision even worse is that 33 of the 50 states already had laws on the books similar to the one he signed, so he basically signed the federal legislation to force the remaining 17 states into being like those 33.
I apologize for belaboring the point, but I really hate when Republicans (the party that claims to support and respect the constitution, because we know that the Democrats definitely don't) treat it like toilet paper. I would hope that Rick Perry would not sign a similar law. I have no objection to tort reform, but the tort reform for state courts needs to take place at the STATE LEVEL only.
Sorry, what I meant to say in paragraph 3 of my post #6 is that the bill President Bush signed gave immunity from lawsuits to gun manufacturers/dealers in STATE courts. Obviously Congress has the authority to grant immunity from lawsuits to gun manufacturers/dealers in FEDERAL courts, but they do not have the right to shove it down the throats of STATE courts, and that is precisely what the legislation in question did. I would be interested in hearing Rick Perry’s position on that, because it would tell me quite a bit about whether he sticks to his guns when it comes to defending the Tenth Amendment from all attacks.
That the trial lawyers are lining up in opposition to Perry will be recognized as a tacit endorsement for the policies of Perry by those Americans who happen not to be trial lawyers. Let them waste their filthy lucre.
By the way, the bill (now law) to which I am referring was entitled the “Protection of Lawful Commerce in Arms Act.”
Do you have a better solution for venue shopping?
Boy, the trial lawyers sure know how to make a guy look better. Perry is really starting to get my attention,
Here's a quote from the article:
"A staunchly pro-gun-rights lawmaker has repeated his opposition to legislation that would protect firearms manufacturers from liability suits, despite a report that the National Rifle Association may pull its support for him in the next election.
Rep. Ron Paul, R-Texas, voted to oppose H.R. 1036, the Protection of Lawful Commerce in Arms Act, because he said he feared it would be an unconstitutional enhancement of federal power. As WorldNetDaily reported, the bill passed the House earlier this month 285-140.
But because he voted against the bill, the NRA may drop its support of Paul in the future, according to Chicago Sun-Times syndicated columnist Robert Novak.
"Paul evoked the NRA's ire April 9 by opposing a bill that would order federal and state courts to immediately dismiss lawsuits against gun makers and gun sellers," Novak wrote. "Paul always has defended Second Amendment protection for gun owners. However, he objected to Congress legislating against state rights."
I know which side I come down on. Even though Ron Paul is a wack-job when it comes to foreign policy, he is 100% right on this issue. We cannot pick and choose which laws to support that violate the Constitution. We must either decide that we are going to respect the Constitution and what it stands for by opposing all legislation passed by Congress which exceeds its authority, or we have no principles on which to stand.
As I already pointed out, 33 states already had a similar law on the books at the time this law was passed. Take a look at this article:
The authors of the article are both fellows at the Cato Institute (which strongly supports gun rights) and they pointed out the flaws with this bill:
"Its easy to understand the concerns that spurred these bills. Federal tort reform supporter Rep. Chris John (D-La.) is correct when he calls the gun lawsuits "frivolous" and warns that they "jeopardize a legitimate, legal business that is worth billions of dollars to our national economy." But not every national problem is a federal problem. As with PSN, gun rights advocates who back federal tort reform have forgotten the Tenth Amendments admonition that powers not delegated to the federal government in the Constitution remain with the states or the people. The power to control frivolous lawsuits belongs to the states."
Where in the Constitution could the federal government find authority to ban state and local lawsuits against the gun industry? According to the tort reform bills pending in both the House and Senate, the answer is the all-purpose Commerce Clause. As the bills supporters view it, the lawsuits interfere with interstate commerce, and therefore, Congress has the authority to strike them down.
But the Commerce Clause, properly interpreted, does not give Congress blanket authority to regulate any activity that might affect commerce. Rather, the purpose of the Commerce Clause is functional: to secure the free flow of commerce among the states. That means Congress may act only when actual or imminent state regulations impede free trade among the states, or when its clear that uniform national regulations are essential toward that purpose. Even then, Congresss power ought properly extend no further than to regulate: (1) channels and vehicles of interstate commerce, such as waterways, airways, and railroads; (2) discrimination by a state against out-of-state interests like restrictions on imported goods; and (3) attempts by a state to exercise sovereignty beyond the states borders, for example, state rules governing national stock exchanges, telecommunications, banking, and broadcast or Internet advertising. Under no credible theory of the commerce power can Congress use that power to regulate noncommercial activities like lawsuits that are designed to prevent and redress injuries, not to regulate interstate trade.
Yes, lawsuits against gun companies affect commerce. But so does just about any state regulation or any court decision. The Commerce Clause could not prevent California, for example, from requiring catalytic converters on cars sold in the state. The Commerce Clause does not permit the federal government to override state minimum wage laws, or state safety regulations on power plants, or the regulation of firearms. Yet all of those state rules affect interstate commerce.
As for your question about venue shopping:
"Companies have a remedy when state courts permit phony lawsuits. They can withdraw from doing business in a state that has an oppressive tort regime. And that remedy honors the federalist idea that the states serve as fifty experimental laboratories. For example, physicians and insurance companies are leaving Mississippi because outrageous damage awards have priced malpractice insurance at prohibitive levels. Ultimately, the voters in oppressive states will have to choose between access to products and extortionate tort law. As more businesses leave, the choice will become obvious. Yes, theres an effect on commerce when out-of-state companies leave. But the effect is not related to the interstate aspect of commerce. Theres a similar effect when in-state companies shut down. In Mississippi, in-state and out-of-state insurance companiesor gun companies, for that matterare all exposed to the same tort regime. Thats why the Commerce Clause should not apply."
Lastly, this paragraph from the article caught my attention: "Those gun rights supporters who would have it otherwise are asking for trouble. Ronald Reagan once noted that a government big enough to give you everything you want is big enough to take it all away. A similar dynamic exists with constitutional interpretation: a Commerce Clause broad enough to solve every national problem is too broad not to be abused. When Congresss authority to regulate commerce is misused to impose federal rules that restrict state gun lawsuits, we should not be surprised that it will also be misused to impose federal rules that restrict gun possession and ownership."
Remember the Brady Bill and the Assault Weapons Ban? Perversions of the Commerce Clause, just as this bill is. If you support bills like this and think that they are constitutional then you must also think that ObamaCare is constitutional (it is not). You can oppose it because it is horrible legislation that will increase the cost of health care, but not on constitutional grounds. P.S. -- I am almost entirely certain that were the federal gun manufacturer immunity law ever to make it before the Supreme Court, Justice Thomas would agree with me. Justice Rehnquist would have as well. You'd have the liberals on your side, however. They would gladly uphold the Protection of Lawful Commerce in Arms Act as constitutional.
So your argument seems to be that we should ignore the Tenth Amendment because the trial lawyers were out of control. Is it not the province of the STATES to rein in these wild animals?
P.S. — do you know how many House Republicans voted no on the gun immunity bill? 4. Besides Paul, three others voted no on it, and they are three of the biggest RINOs and gun control supporters - Mark Kirk (the RINO who sits in Obama’s former Senate seat), Chris Shays (former CT RINO congressman who was defeated, and Mike Castle (former DE RINO who was beaten by Christine O’Donnell in the Republican primary last year). It’s really a shame that the guy is so bad on foreign policy, because I think he’s the only one in the House who actually respects the Tenth Amendment consistently.
I just remembered a saying we have around here; It’s just 98% of the lawyers that make all the rest look bad........
Some insight to where Perry stands on guns
Places to explore:
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I know where Perry stands on gun rights. He claims to be a Tenth Amendment supporter, and by all indications he is, so I was wondering what his position was on Congress passing tort reform for state courts. The proper place for tort reform is at the state level. Perry passed tort reform in Texas and that was fine. By all accounts, it has helped their state economy tremendously, and I plan to move there from New York in a few years. I don’t want to see a President Perry pushing federal tort legislation on state courts like President Bush did. I know they’re both Texans but I get the sense that Perry actually respects the Tenth Amendment. We know that Bush didn’t, with his support of programs like No Child Left Behind. Do you think Perry will be consistent in his support of the Tenth, even when it conflicts with something that he may want to do (like pass tort reform at the federal level similar to what he passed in Texas). I don’t want it to seem like I’m bashing Perry here at all. I watched him on the Daily Show back in 2010 and he talked about how Texas reformed its tort laws and how if people want to live in a litigation-crazy environment they can live in California, but don’t force stuff on Texas. So, to me, he already sounds better on the issue of federalism then all of the announced candidates that have a chance of winning.
>> Even though Ron Paul is a wack-job when it comes to foreign policy, he is 100% right on this issue.
I was starting to wonder about you, nOOb.
Now I know.