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    Legal Analyst Walter Olson On Tort Reform

    BY Charles Oliver
    08/16/2000
    by Charles Oliver on 8/16/00.

    Investor's Business Daily Presidential candidates Al Gore and George Bush will seek to define themselves as the campaigns pick up steam. One of the biggest policy differences between the two men is on the issue of tort reform. Cutting the costs of the legal system is a major issue of Bush's campaign. Gore has been largely silent on the topic this year, but generally resisted such efforts in the past. Investor's Business Daily spoke to legal analyst Walter Olson about tort reform and the role it may play in the coming election. IBD: Will tort reform be a hot issue in the upcoming election? Olson: The Republicans seem prepared to press it. I counted five mentions of it during speeches at the GOP convention, though Bush himself didn't mention it. IBD: So would it be correct to say that while it will be an issue, it won't be a major one? Olson: No, I think it is a major issue. Bush has stated repeatedly over the course of the campaign that this topic is a high priority for him. IBD: But he's talked about a lot of issues over the last year. Olson: Yes, but Bush has a track record on the issue. When he first campaigned for governor, he said he had a handful of issues that he wanted to focus on, including tort reform. He said that his opponents might want to debate other issues, but he was always going to bring it back to his own core issues. And observers were amazed at how well he kept that promise. IBD: What about after he took office? Olson: Even more remarkably, he continued to focus on those issues, and he got something on all of them. IBD: What did he get in the way of tort reform? Olson: He got quite a bit. In fact, the package of reforms passed in Texas is one of the most sweeping passed by any state. IBD: Was it a very radical package? Olson: No, all of it was in the mainstream of what has been done over the last decade. Texas took various things that other states have done and put them together into one big package. IBD: What was in that package? Olson: One of the big things Texas addressed was forum shopping. IBD: That's where lawyers search for the most favorable venue for their case, even if it has little relation to the case.
    Olson: Right. Before the changes, suits could be brought in Texas even though the plaintiff wasn't from Texas, the defendant wasn't in Texas and the act being sued over didn't occur in Texas. But under Bush, Texas required a connection to the alleged injury or to the defendant's place of business for a suit to be brought. This has reduced forum shopping. IBD: What else has Texas done?
    Olson: It's made it easier for judges to punish those who file frivolous suits by ordering them to pay the court costs of those they've sued. Texas also limited punitive damage awards. IBD: What impact did this have? Olson: A recent report from Citizens for a Sound Economy says the changes have reduced tort costs by about $ 7 billion. IBD: How much responsibility does Bush bear for those changes? Olson: Quite a bit. In other states, tort reform began in the legislature, and the governors either simply went along with the proposals or opposed them. But in Texas, Bush was a leader on the issue. IBD: What does Bush want to do at the federal level in terms of tort reform? Olson: Bush called for "three strikes" legislation that would disbar an attorney who files three frivolous lawsuits in federal court in three years. The plan also calls for lawyers who rejected a pretrial settlement and eventually lost their case, or received a much smaller settlement, to pay opponents' legal fees. He also proposed new rules to let clients challenge the fees of their own attorneys in federal court and prohibit federal agencies from paying lawyers with contingency fees. IBD: What about the other side? What is Al Gore's record on tort reform like? Olson: In his years in the Senate, Gore generally opposed efforts to curb lawsuits. IBD: But Gore has been largely silent on the issue during this campaign. Olson: He seems to have judged it an unpromising voter strategy to take the offensive on the issue. IBD: In contrast to Gore, his running mate, Sen. Joe Lieberman, has a long record in favor of tort reform. Olson: That's right. He has said that lawmakers have a duty to minimize disputes, and to encourage those who do have disputes to resolve them as efficiently and as quickly as possible. He joined Republican senators to sponsor legislation providing for small-business liability relief and asbestos-suit reform. And he was one of just four Democrats to vote to curb the huge fees of private lawyers hired by the states to sue tobacco companies. IBD: He also voted to keep the District of Columbia from suing gunmakers for deaths caused by firearms in the district. Olson: That's right, although Lieberman is generally a strong advocate of gun control.