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It's Deja Vu All Over Again: Plaintiff's Lawyers and the Evolution of Tort Law and Practice in Texas

Authors: Stephen Daniels, Joanne Martin

This project is examining the effects of tort reform on plaintiffs’ lawyers’ practices in Texas. Recognizing that these lawyers are the gatekeepers of the civil justice system and that one  goal of tort reform is to make certain kinds of cases financially unattractive, the research seeks to understand the effects of such reforms on access to the rights and remedies the law provides. It builds on earlier research on Texas plaintiffs’ lawyers conducted by Daniels and Martin and relies upon surveys of and in-depth interviews with Texas plaintiffs’ lawyers.

The current research utilizes a survey instrument that in significant part mirrors the questionnaire used in Daniels and Martin’s earlier research. This allows for comparisons across time in Texas. The survey was updated to capture the most recent legislative activity in Texas and the changes in the rules regarding referral fees. Along with the survey, 51 in-depth interviews with Texas lawyers were conducted (in addition to the 100 interviews done as a part of the earlier research), 21 of which were re-interviews with lawyers previously interviewed as a part of the earlier research. In addition, the project includes analyses of data from a unique survey done by the State Bar of Texas on case referral practices among Texas lawyers. In conjunction with the earlier project, the broad temporal scope of this research permits an examination of changes in plaintiff’s practices and the legal environment in which they work over a 15 year period. All data collection has been completed, and Daniels and Martin are currently at work on a book manuscript that combines the results of both projects.

Among the findings to date is a shift in lawyers’ practices away from medical malpractice cases in light of a $250,000 cap placed on non-economic damage awards by the 2003 reforms. Most dramatically, few, if any, plaintiffs’ lawyers are now taking medical malpractice or nursing home cases involving the elderly or malpractice cases involving women who are at home raising their children. The lack of substantial economic damages and the expenses involved in adequately preparing such cases coupled with the cap on non-economic damages make the cases financially problematic for lawyers working on a contingency fee basis. One lawyer went so far as to claim that the cap “essentially closed the courthouse door to the negligence that would kill a child, a housewife or an elderly person … unless it’s drop-dead negligence that you can prosecute with one or two experts, that’s just not a case that I think in Texas right now is a viable case.”


Summaries and findings

Video: Daniels on Tort Reform and Access to Justice
Mar 25, 2015
'The Juice Simply Isn't Worth the Squeeze in Those Cases Anymore:' Damage Caps, 'Hidden Victims,' and the Declining Interest in Medical Malpractice Cases
Mar 12, 2009

All summaries and findings »

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