Trial lawyers prep for war on Perry

Politico ^ | August 22, 2011 | ALEXANDER BURNS

[Cincinatus' Wife]

America’s 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.

That’s 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 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.

Mostyn said his political spending wouldn’t 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 we’re doing great down here, when we’re not. We’re 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. It’s 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 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.”

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 Edwards’s campaign and ultimately ended up at the center of the former North Carolina senator’s 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 governor’s 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 they’re 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. “They’ve been active through all the governor’s 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 it’s 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 Perry’s 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.

“It’s clear from Gov. Perry’s 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 doesn’t 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 he’d like to see on the federal level, and said he wouldn’t want to impinge on states’ rights. Trial lawyers aren’t 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 Perry’s 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 [Perry’s] 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 can’t go to court, can’t afford to go to court,” Harpootlian said. “Corporations don’t locate to Texas because of tort reform, because of this idea that they won’t be sued. They locate to Texas because … labor is cheap and Rick Perry’s not doing anything to protect the average working men and women.”

And California trial lawyer Joe Cotchett alleged some hypocrisy in Perry’s 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.”

It’s 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: “It’s about creating jobs versus lining trial lawyers’ pockets.”

[10thAmendmentGuy]

Yeah? So you think Congress has the right to exceed the limits of the Commerce Clause when it's something you agree with? That's nice to know. It completely contradicts the stated mission of FreeRepublic, which states the following:

"We at Free Republic are determined to return the Constitution to its rightful place as the Supreme Law of the land as the Founders intended."

"A return to a strictly Constitutional form of federal government will automatically repeal and abolish all unconstitutional federal involvement in states issues such as: crime, health, education, welfare and the environment. The Tenth Amendment will again be in effect, which will bar all federal attempts at legislating social issues. This will also require that social programs such as Social Security, welfare and Medicare be repealed. So too, will most federal subsidies."

I think I fit in just fine here.

P.S. -- do you support the Brady Bill and the federal Assault Weapons Ban? I do not. Those blatantly anti-gun pieces of legislation were passed by Congress using the same proposed authority (the Commerce Clause).

[Cincinatus' Wife]

I certainly don’t have a crystal ball, and I don’t speak for Perry but you are correct that he is better on this and has the best chance to win, so your questions are valid - we all should look forward.

Here is a YouTube video I found about Perry speaking on “Stronger Lawsuit Reforms for Texas”

http://www.youtube.com/watch?v=fc4-64iZans

[10thAmendmentGuy]

I can’t think of one domestic policy position of his that I disagree with except for DADT. He supported repealing it, and I did not. He is completely wrong on foreign policy, however, and if he were ever to be elected President, this country would be screwed. I’m not supporting him for President anyway. I am a Palin supporter.

[palmer]

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.

Not correct. See http://volokh.com/archives/archive_2005_04_17-2005_04_23.shtml#1114111634

And this law imposes liability for manufacturing and distributing semiautomatic weapons even if the manufacturers and dealers are distributing the guns far outside D.C., in a jurisdiction where the guns are perfectly legal -- and semiautomatic guns are legal nearly everywhere in the U.S.

[palmer]

He’s either a liberal-libertarian ideologue with a dash of neocon, or a disrupter troll “Palin supporter”.

[SueRae]

Good find. Bump for later reading.

[10thAmendmentGuy]

Out of curiosity, I just took that little political test you have in your profile. The results are in my profile: "I am a far-right moderate social libertarian Right: 9.09, Libertarian: 1.15."

Sounds like I am in the right place.

[10thAmendmentGuy]

The strongest argument for the constitutionality of the legislation, in my opinion, is actually of the minor, proposed arguments that Volokh made — namely that the lawsuits were jeopardizing the ability of the people to keep and bear arms, which is protected under the Second Amendment of the United States, which was recently incorporated to the states via McDonald v. Chicago. I think the legislation actually passes constitutional muster under that argument, so the Commerce Clause argument is irrelevant.

[palmer]

So you support the legislation? What about the fact that the lawsuits were designed simply to put firearms makers out of business, isn’t that a restriction of commerce by one state (or district) against the state with that firearms maker?

[10thAmendmentGuy]

How exactly am I a liberal-libertarian ideologue with a dash of neocon? I’ve never had a conservative accuse me of being a neocon before. I thought it was the liberals and the Paulites who were obsessed with the neocons. I would categorize myself as a conservative-libertarian, or a libertarian (small-L) Republican, like Milton Friedman.

[10thAmendmentGuy]

Not in my opinion. I take a very narrow view of the Commerce Clause. But we agree on its constitutional now anyway, so it is irrelevant. I have seen the Commerce Clause perverted by liberals too many times (the most recent example is with ObamaCare), so I am hardly eager to take an expansive view of federal power via that avenue.

[palmer]

Consistency would mean supporting Ron Paul in all of his arguments against foreign intervention. You are being inconsistent, so you are motivated by other things than “libertarianism”.

[freedomfiter2]

Perry deserves a lot of credit if he has stood against the zombie horde of lawyers that is killing the country.

[SumProVita]

Wow! If trial lawyers AND the NEA are against him.....he MUST be good!

[ontap]

I don’t get your point...defending the second amendment is every bit as important as defending the tenth amendment.

[Condor51]

America’s 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 .... 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.

Dear 'Trial Lawyers',
Go ahead, make Perry's millennium.

You scum sucking bottom feeders are detested by 97.926% of every breathing human in America. And the ONLY reason you're still around is that you've rigged the Legal System so your presence in a court of law is required. [Note: Not Wanted.]

So knock yourselves out. You'll be committing a modern day version of 'Calling Out' Wild Bill Hickok for a gunfight₍₁₎.

(1) Historical note 'Trial Lawyers' -- Hickok never lost a gunfight.
(personally, I'd think about that. but that's just me)

[10thAmendmentGuy]

I actually think that the legislation is constitutional on the basis of protecting our Second Amendment right to keep and bear arms. That argument doesn’t apply, however, to any non-firearms related tort legislation that Congress attempts to pass at the federal level. That should be the province of states.

[ding_dong_daddy_from_dumas]

But more important is the myth that we’re doing great down here, when we’re not. We’re falling behind the rest of the country, and the country is falling behind the rest of the world.

"We????" Who is this "we?"

[deport]

The Trial Lawyers will do whatever is in their powers to sidetrack Perry. He has been a throne in their side for the last few years and Texas has slowly gotten then under control starting even before Perry was Gov. Trial lawyers are no friend of the conservative side no matter who the candidate becomes.

[Ann Archy]

WOW!! The more I see his ENEMIES, the more I LIKE him!!