Proposals for More “Tort Reform” in 2006

The Fulton County Daily Report (subscription required, $) published an article on 4/20/05, reporting that the tort reform lobby isn’t finished in Georgia. According to the article, there are plans to come back in 2006 with proposals to limit contingent attorney fees with some sort of sliding scale, and to make “collateral sources” (payments that the plaintiff received from her own insurance company) admissible in evidence.
Arbitrary limits on contingent attorney fees sound consumer-friendly to the uninformed at first blush. However, the intent is to make it economically impossible for attorneys to handle big, complex injury cases, and thereby deprive injury victims of competent representation. Lawyers representing plaintiffs in complex tort cases — especially products liability and medical malpractice cases — generally have to devote hundreds of hours of their time with substantial risk of never getting paid, and spend $50,000 to $100,000 or more of their own money on expenses with no chance of repayment if they lose. That is a significant entrepreneurial risk that cannot be taken without the hope of a corresponding significant profit if the case is successful. If contingent attorney fees are capped at a level that makes that investment of time and money prohibitive, trial lawyers will not take those cases, but will migrate to other kinds of legal work, and injury victims will go unrepresented. But of course that is the goal of those who promote such ideas.
The tort reformers claim that the “collateral source rule” under which payments to or on behalf of the injury victim by her own insurer or other sources promote a “double recovery.” The basis of the rule is the highly prejudicial effect on a jury of learning that the plaintiff has already received some money, or that bills have already been paid. Proponents of changing the rule disregard the fact that the victim has generally exercised the prudence to purchase insurance, the benefits of which flow from contract rights.
A big problem with both of these proposals is that they are almost certainly unconstitutional. Unfortunately, some of those who call most loudly for “tort reform” worry about the constitution only when their own rights are impacted.
– Contingent fee caps. Section 10 of the U. S. Constitution provides: “No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .” This is simply a matter of imposing wage and price controls in order to arbitrarily deny injury victims the right of competent legal representation by fixing unreasonably low fees for services rendered by attorneys. Moreover, to limit the fees to which a plaintiff can contract in order to obtain competent, vigorous representation, without also placing a low cap on the fees a manufacturer or insurance company can agree to pay its law firms, would be a violation of Equal Protection under both state and federal constitutions.
– Collateral Source Rule. In 1987, the legislature passed a “tort reform” bill that included admissibility of collateral sources in evidence. The Supreme Court held it unconstitutional. In the case of Denton v. Con-Way Southern Exp., Inc., 261 Ga. 41, 402 S.E.2d 269 (1991), the Supreme Court of Georgia held that provision unconstitutional under the Equal Protection provision of the Georgia Constitution. It is a violation of Equal Protection to inform the jury of the plaintiff’s medical or disability insurance without also informing the jury of the defendant’s liability insurance. What’s sauce for the goose is sauce for the gander.
Conservative. strict construction adherence to the Constitution would bar both of these “tort reform” proposals.

The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).