For decades now, tort reformers have made the case that personal injury lawyers have abused the civil justice system in two major ways. First, our civil courts are no longer forums of last resort in which legitimate disputes are fairly resolved. Instead, a small group of powerful lawyers promote their own financial gain, often at the expense of their clients and society at large.
Litigation is now profit-based, rather than justice-based.
Second, lawyers are using the court system to do an end-run around our elected legislatures by using lottery-sized jury verdicts to establish broad public policy.
Now comes a personal injury lawyer -- Martin J. Siegel -- admitting in his April 20 Outlook article, "Why Texas Republicans should love the trial lawyers," that both abuses are absolutely true.
In Siegel's words, trial lawyers "exploit the market for legal services as energetically and entrepreneurially as they can."
This is exactly why we need to reform our civil justice system. Our civil courts are not meant to be gamed for profit, but to compensate parties who have been harmed by the negligent or intentional acts of others.
When lawyers are licensed by their states to practice law, they are given extraordinary powers, akin to state powers. Lawyers can take depositions, issue interrogatories and demand records -- all of which are intrusive and intimidating. Therefore, they owe a duty to the law and truth and justice. Their advocacy, under that duty, must not be to "maximize the award at any cost."
In any other state activity, the kind of behavior described by Siegel would be seen as corrupt. What if a policeman were paid a commission for each speeding ticket he issued? Or a judge paid a percentage of the monetary judgments she rendered?
Would we dare use personal profit motive to reward those with power conferred by the state? Similarly, plaintiff lawyers are officers of the court and are vested with powers and responsibilities beyond the lay citizen. They should not be allowed to abuse their state-sanctioned powers.
This is one reason why the Texas Bar provides a code of ethics that includes a requirement that legal fees, including contingency fees, be reasonable. Unfortunately, this provision is rarely enforced.
Siegel also admits to using the courts to regulate society. A Civics 101 refresher course tells us that the legislative branch makes the laws, the executive branch enforces the laws and the judicial branch applies and interprets the laws. Nowhere does it say that unelected, unappointed personal injury lawyers should make public policy for all Texans.
Our Founders knew that public policy issues should be tested in the crucible of debate after extensive research and only then decided by people who have won elections to represent the will of their constituents.
Personal injury lawyers can and should play an important role in society, but not as entrepreneurs nor as replacements to elected representatives.
As to whether Republicans, Democrats or independents should support the continued abuse of our civil justice system, elections are the tool we use to answer that question. And recent elections have left no doubt as to the answer: Texans say, unequivocally, "Stop lawsuit abuse now!"