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Covert Operations: The Texas Trial Lawyer Message Machine

By Sherry Sylvester, TLR Media Consultant

Texans support lawsuit reform. Polls routinely show that a majority of Democrats, Republicans and Independents believe the reforms passed in Texas have had a positive impact on the state and over half want more. Polls also show that Texans are suspicious of personal injury trial lawyers, believing they file too many meritless lawsuits.

Faced with this brick wall of opposition to their agenda, wealthy Texas trial lawyers and their allies have mobilized a sophisticated misinformation campaign conducted by organizations that appear to have no direct link to organized trial lawyer groups. Their mission is to push the trial lawyer agenda and undermine lawsuit reform.

Over the past several years, a pattern has emerged. A news story will appear, seemingly out of nowhere, alleging that lawsuit reform has not been effective in increasing the number of doctors in Texas. An official looking survey will be circulated suggesting that most Texas judges say they have almost never been confronted with a frivolous lawsuit in their courts. A television show will air about a tragic malpractice victim who has been denied their day in court because of tort reform.

TLR routinely refutes this kind of misinformation with facts gathered from our extensive legal research, as well as data and analysis from objective sources, including state courts, hospitals, doctors and government agencies.

Our public statements and the research we use to expose these claims all bear our name – Texans for Lawsuit Reform. But the organizations and individuals we engage in these debates are never as easily identified. Virtually always, they are covert operators for trial lawyers. Masking their self-interest, they pose as objective advocates for the public good.

In both state and national media, these “advocacy groups,” political front groups and pseudo-academic trial lawyer groups keep up a relentless assault on lawsuit reforms in Texas, camouflaging their funding sources and operating below the radar of public awareness.

THE “ADVOCACY” GROUPS

TLR’s longtime critic, Texans for Public Justice (TPJ), continues to deny their link to trial lawyers even though an accidentally posted tax return revealed in 2006 that their major funders included wealthy asbestos lawyer, the late Fred Baron and John Eddie Williams, one of the “Tobacco 5” attorneys who received part of the estimated $3.3 billion dollar fee from the state. The fight over the multi-billion dollar fee, of which John Eddie Willliams was a part, ultimately led to the conviction of former Attorney General Dan Morales.1 According to the Texas Secretary of State’s office, TPJ is governed by a three-person board that includes a New Yorker who also heads one of the largest anti-tort reform groups in the country. 2

Texans for Public Justice is almost always identified in the media as a non-partisan watchdog that tracks money in Texas politics.3 They have gained the attention of the Texas press over the years for their reports analyzing campaign contributions in Texas, a tedious process that reporters rarely have the time or the resources to undertake. But TPJ’s analysis is far from objective.

From the beginning, their annual reports on Texas campaign spending have obscured the size and scope of plaintiff lawyer contributions. Packaged as white papers, these “studies”repeatedly target individuals from business who make large campaign contributions. They also criticize contributions to judges who deliver decisions trial lawyers don’t like,4 but TPJ has never reported the combined impact of plaintiff lawyer contributions or challenged any major trial lawyer contributor. This is true even though their most recent report acknowledged that trial lawyer contributions increased by 211% in the last election cycle, dwarfing the contributions of any other group.5

TPJ has often not bothered to be objective. In 2003, TPJ funneled campaign contributions to the forces that were working against the medical liability reforms included in Proposition 126. In 2005, when John O’Quinn, a personal injury trial lawyer from Houston who is recently deceased, gave the largest single political campaign contribution in Texas history, $2.5 million, the “campaign finance watchdogs” did not even issue a statement.

When asked about the omission, TPJ Executive Director Craig McDonald told the Austin American-Statesman that he did not “begrudge Mr. O’Quinn from raising money to help the Democratic ticket. It is woefully underfunded compared to the special-interest money Gov. Perry has raised. . . . I’m not outraged.”7

TPJ has long supported a perennially introduced campaign finance reform bill that would restrict campaign contributions from corporations and labor unions. If the bill passed, almost all the contributions of personal injury trial lawyers would remain unlimited.8

TLR authored an extensive report on TPJ in 2002 that is available at www.tortreform.com. 9

Like TPJ, Texas Watch is another front group that bills itself as an independent and non-partisan consumer advocate group “fighting for Texas families.” They collaborated with TPJ in 2003 to oppose Proposition 12 and their current objective is to reverse medical liability reforms. 10

Names of Texas Watch financial backers are not available for public review, but according to reports filed with the Texas Secretary of State, their eight-member board includes both the senior communications director for the Texas Trial Lawyer Association (TTLA) and a member of the TTLA Board who also sits on the national trial lawyer advocacy group, the American Association of Justice (formally the American Trial Lawyer Association).

Texas Watch has been interviewed in the press over 400 times since Proposition 12. In their capacity as a “consumer watchdog,” they are asked to comment on all kinds of insurance issues – home, auto, medical. Their response in virtually every instance is essentially the same – allow more lawsuits.

Texas Watch is frequently quoted in news reports that highlight an alleged victim of medical malpractice who can’t find an attorney because of the caps on non-economic damages. It is not clear how Texas Watch gains access to the details of these individual cases. On several occasions, proponents of tort reform have asked to see records to independently determine whether it was tort reform or the lack of merit that doomed the case. In each instance they were rebuffed by Texas Watch who cited privacy concerns. So either the injured party shared the records with Texas Watch, so the records were not, in fact, private or Texas Watch was simply speculating about the contents of the records and did not know the facts.

Texas Watch aggressively lobbied the Legislature in the most recent legislative session to pass a bill that would have reversed the Texas Supreme Court’s Entergy decision. Had the bill passed it would have reversed a decades old policy supporting workers’ compensation and allowed trial lawyers to exploit third-party lawsuits against property owners. 11

THE POLITICAL FRONT GROUPS

Wealthy trial lawyers contributed nearly $9 million12 to contested Texas legislative campaigns in the last election cycle, more than any other single business or industry. They funnel many of their campaign contributions through deceptively named political front groups so that the public will not be aware of the full extent of their involvement. The largest of these front groups is the Texas Democratic Trust, which contributed $4.1 million in the last election cycle. The Trust was established by Baron, the wealthy asbestos trial lawyer cited above 13 and is currently largely funded by his widow, Lisa and other wealthy trial lawyers, including John Eddie Williams.14

The Texas Democratic Trust contributes to other political action committees and provided over half the funding for the Texas Democratic Party in the last election cycle. (In all, trial lawyers contribute almost 90 per- cent of the funding for the Texas Democratic Party.)15

Another front group, Texans for Insurance Reform, is a multi-million dollar political action committee that receives 97 percent of its funding from trial lawyers.16 One of their top contributors, San Antonio personal injury trial lawyer Mikal Watts, has been exposed urging a legal opponent to settle a case, claiming he had influence at the 13th Court of Appeals because of his generous campaign contributions.17

Watts almost exclusively funds two other deceptively named front groups – Vote Texas and the Good Government PAC. 18 19

In addition, First Tuesday, a political action committee targeting Houston candidates and the Texas Values in Action Coalition,20 (TVAC) a group that works to elect North Texas candidates, are both funded largely by trial lawyer contributions. In the most recent election, First Tuesday received 93 percent of their contributions from trial lawyers21 and TVAC received 98 percent from that group. 22

The House Democratic Campaign Committee appears to be a standard partisan political action committee, but in fact over half of their contributions come from trial lawyers.23

By accepting contributions from one or more of these innocuously named front groups, a candidate can appear to have a broad base of support, rather than revealing that he or she is mostly backed by money from trial lawyers.

PSEUDO ACADEMIC AND RESEARCH GROUPS

Like their political counterparts who use deceptive names for their front groups, trial lawyer-backed “researchers” produce pseudo-academic “studies” that appear to bolster the trial lawyer argument.

‘In 2007, a report entitled “Straight from the Horse’s Mouth: Judicial Observations of Jury Behavior and the Need for Tort Reform” was published in the Baylor Law Review. The report seemed to show that the majority of Texas judges reported no current or past problems with frivolous lawsuits in their courts. 24

In a commentary in the San Antonio Express-News, TLR Attorney Lee Parsley exposed the anti-tort reform bias in the study, but also showed that even the spotty data indicated serious concerns about frivolous lawsuits among the judiciary that had been surveyed. Indeed, the report showed that “over half the judges surveyed said they had personally observed a frivolous lawsuit in their courtroom in the past four years.” 25

It should be noted that at Baylor Law School, which published the study, the Law Center and the Research and Technology Institute are named after two personal injury trial attorneys who were also part of the “Tobacco 5” – Walter Umphrey and John Eddie Williams, respectively, although those names are not included in the study’s publication notes.26

TLR conducts extensive legal and public policy research through the TLR Foundation. Our name is clearly attached to every study we publish.

PUBLIC POLICY DEBATE

TLR welcomes dialogue with all who want to challenge our ideas for improving Texas’ civil justice system. We are committed to engaging in public policy debate because we are confident that our ideas will triumph, based on their merit. The business and community leaders, doctors and health care professionals, small business people, good government advocates and others who comprise the leadership and supporters of Texans for Lawsuit Reform are motivated by the belief that fair and honest courts are essential for a healthy business climate in Texas and the broadest access to health care. We believe the motivations of those who oppose us in this debate should also be transparent to the public.

ENDNOTES TO COVERT OPERATIONS: THE TEXAS TRIAL LAWYER MESSAGE MACHINE

[1] “Trial Lawyers give $50,000 to ‘neutral’ watchdogs, Roddy Stinson, San Antonio Express-News, Nov. 5, 2006.

[2] Trial Magazine, Interview with TPJ Board Member Joanne Doroshow, entitled, “Speaking Truth to Power: It may seem that trial lawyers are alone in the fight to protect the civil justice system from attack, but they’re not, says this fellow veteran of the tort ‘reform’ wars.” Doroshow is described as “the executive director of the Center for Justice and Democracy (CJ&D) a nonprofit organization with a self-described mission “to educate the public about the importance of the civil justice system and the dangers of so-called tort reforms.” July, 2004.

[3] According to a Lexis-Nexis search, Texans for Public Justice has been quoted 104 times in Texas papers in the past 12 months. They were described as a “watchdog group” 72 times.

[4] TPJ’s website includes 33 tags linking to their reports on Bob Perry, 17 tags linking to TLR, 9 tags linking to James Leininger and 29 tags linking to Texas Supreme Court Justice Priscilla Owen. (TPJ led the charge against Owen’s appointment to the U.S. Supreme Court in 2004.) There are no tags on their website indicating any reports on plaintiff lawyers.

[5] “The plaintiff-lawyer-funded Texas Democratic Trust and Texas Democratic Party spent close to $6 million apiece in the 2008 cycle, increasing their collective spending 211 percent to become the two largest PACs in Texas.” Texans for Public Justice Press Release, April 27, 2009.

[6] “Campaign-funds watchdog donates to foes of Prop. 12,” Houston Chronicle, Sept. 5, 2003. “Texans for Public Justice, which regularly issues reports critical of business and insurance special interest money, has given $ 19,100 to Texans Against Proposition 12, a political action committee.”

[7]Austin American-Statesman, Oct.10, 2006.

[8] “Coalition to pursue campaign reforms; Group to push for more financing limits from 2005 Legislature,” Austin American-Statesman, June 27, 2004.

[9] “Watchdog or Attack Dog: Texans for Public Justice, Not Texan, Not Public, Certainly Not Just,” Texans for Lawsuit Reform, Spring 2003.

[10] “Campaign-funds watchdog donates to foes of Prop. 12,” Houston Chronicle, Sept. 5, 2003. “Texas Watch, a self-styled consumer action group, has given $41,500 to the same PAC [Texans Against Proposition 12], according to reports filed with the Texas Ethics Commission.”

[11] “Supreme Court sticking by workers comp ruling,” Dallas Morning News, April 4, 2009.

[12] Texas Ethics Commission 2008 campaign finance reports, Texans for Lawsuit Reform press release, Nov. 21, 2009.

[13] “The Life of the Party,” Texas Lawyer, Dec 25, 2006. Baron is named “Impact Player of the Year” for establishing the Texas Democratic Trust.”

[14] Texas Ethics Commission, Campaign Finance Reports.

[15] Texas Ethics Commission 2008 campaign finance reports, Texans for Lawsuit Reform press release, Nov. 21, 2009.

[16] Ibid.

[17] “Candidate played up firm’s link to justices,” Houston Chronicle, Sept 5, 2007. “This court is comprised of six justices, all of whom are good Democrats,” Watts wrote. “The Chief Justice, Hon. Rogelio Valdez, was recently elected with our firm’s heavy support, and is a man who believes in the sanctity of jury verdicts.”

[18] “Pulled political ads result in FCC complaint,” Corpus Christi Caller-Times, Oct. 23, 2008.

[19] “Corpus Christi TV Stations Show Integrity against GOP ad,” Corpus Christi Caller-Times, Sept 25, 2008.

[20] “Funding group, GOP spar over DeLay charges,” Dallas Morning News, Oct 4, 2005.

[21] Texas Ethics Commission 2008 campaign finance reports, Texans for Lawsuit Reform press release, Nov. 21, 2009.

[22] Ibid.

[23] Ibid.

[24] “Straight from the Horse’s Mouth,” Larry Lyon, Bradley J.B. Toben, James M. Underwood, William D. Underwood, James E. Wren, Baylor Law Review, Nov. 7, 2007.

[25] “Civil justice study shows more reforms needed,” San Antonio Express-News, Nov 22, 2007. “No serious researcher would conclude that the study is scientifically valid, but even this imperfect data shows the opposite of what Kelly and Nobles assert.”

[26] From the Baylor University website: “The new home of Baylor Law School, the state-of-the-art Sheila and Walter Umphrey Law Center. Welcome to the Sheridan & John Eddie Williams Legal Research and Technology Center. Our primary clientele consists of faculty and students of Baylor Law School.

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