This year, Georgians win big -- from multinational corporations to small businesses to consumers and medical providers and their patients. In mid-February, Governor Sonny Perdue signed into law one of the nation’s most sweeping omnibus civil justice reform packages. Stunned, the trial lawyers’ organizations decried the speed at which the legislation passed and was enacted – less than a month from its introduction through committees to be passed by both chamber of the Georgia General Assembly – as a “railroad job.”

 

For those businesses, medical providers, consumers, activists and citizens who have labored in vain for enactment of reasonable civil justice reform in Georgia, the win in February was the culmination of a two-decade struggle. The Southeastern Legal Foundation, a public interest law firm, the Georgia Chamber of Commerce, the state’s vital business community link to government, the Medical Association of Georgia, representing the physicians’ interests, and the Georgia Hospital Association, contributed time, resources, attorney insight, and passion to the process.

 

Major provisions of the omnibus bill signed into law include elimination of joint and several liability in all cases, replaced by “proportional share” liability; offer of judgment to encourage settlement and discourage costly litigation; expert witness reform to the standard established in the U.S. Supreme Court’s Daubert decision; limits on liability for non-economic damages in medical malpractice cases to $350,000 per provider, up to a cap of $1,050,000; raises the standard in cases against hospital emergency rooms and ER doctors to “gross negligence;” and, unique to Georgia, allows a co-defendant to move a lawsuit back to his home county if venue “vanishes” when another defendant is dropped from a lawsuit.

 

The story behind the story, however, is far more complex than its end result. For reformers in other areas of the nation, the Georgia experience provides an interesting, albeit imperfect, blueprint for action. Attorneys working with the major interest groups, along with legislative counsel and receptive lawmakers, worked long hours to draft and amend solid bills that were light on rhetoric and heavy on practical legal reform. Georgia’s success this year, and the work that remains to be done on issues like collateral source disclosure, class action reform, and contingency fee reform demonstrate that our state’s efforts, while far from perfect, yield tactical and strategic lessons that will be useful for reformers. Consider the following:

 

Never underestimate the power

of good politics and good politicians.

 

In the past two decades in Georgia, reasonable civil justice reform measures died in legislative committee or were so demagogued by the trial lawyers’ groups that they were never introduced. Well-organized and highly funded, the lawyer groups made sure that the lawmakers whom they supported -- particularly Democrats -- toed the party line.

 

Then came the November 2004 general election. For the first time in Georgia history, Republicans gained control of both the House of Representatives and the Senate, along with the Governor’s office. Based on the leadership of Speaker of the House Glenn Richardson and Speaker Pro Temp Mark Burkhalter, not only did the GOP capture more seats than expected, but they encouraged more than a dozen lifelong Democrats to switch parties. Demographics in Georgia suggest that these majorities will exist well into the future.

 

The new GOP majorities have major housecleaning chores. Georgia’s past state political leadership, dominated by trial lawyers, made pro-business, pro-civil justice reform efforts

an impossibility. With courage and conviction, the new leadership immediately made substantive reform a top priority, so it passed. Period. The tireless, extraordinary work of four primary organizations, including Southeastern Legal Foundation, the Medical Association of Georgia, the Georgia Hospital Association, and the Georgia Chamber of Commerce would have been wasted without political leadership.

 

A second maxim to this point: Business and professional interests must step up to demonstrate their support. For decades, the business community yielded the public battleground to the trial lawyers on these issues, fearing a public relations “disaster” and retribution from trial lawyers serving as Governor and Speaker of the House. This year, business and professional interests began to provide tangible, visible support for lawmakers who wanted to do the right thing. Feeling abandoned in the past by the very constituencies who should have been supportive, Georgia legislative leaders are now invigorated by the “new” alliances.

 

Don’t expect to get it all done at once.

 

In states where little has been done in terms of substantive legal reform, start with a bold

proposal and be prepared to negotiate. In Georgia, state Sen. Preston Smith (R), the new chairman of the Senate Judiciary Committee, introduced an omnibus bill that included all major provisions described above except collateral source offset. Southeastern Legal

Foundation executive director Shannon Goessling, who testified before the Senate and House committees, made the important suggestion that the bill include a severability clause. Such a clause is vital for omnibus legislation because it ensures that multiple provisions will survive a successful court challenge against any single provision. Without it, the entire bill is jeopardized.

 

There will be time in the coming years to address specific issues. Texas, the state which blazed a bold trail last year with its comprehensive tort reform legislation, is this year returning to the table with its Lawsuit Abuse Reduction Act. In Georgia, lawmakers are currently considering a separate bill on class action reform, and reformers are putting leadership on notice that we intend to come back next year with collateral source offset and contingency fee reform. What makes the passage of tort reform legislation so remarkable for the state of Georgia is the tremendous struggle reformers have weathered in what was deeply anti-reform environment created and maintained by Georgia’s trial lawyers.

 

Put aside parochial differences to get the job done.

 

President Ronald Reagan said, “There is no limit to what a man can do if he doesn’t care who gets the credit.” There are plenty of kudos for all participants if victory is achieved. In Georgia, where past bitter battles over tort reform had reduced the effort from various camps unwilling to compromise with one another, this year’s success is based on unity of purpose for achievement of one goal.

 

Unlike our counterparts in states like Michigan, which has a rich history of business community camaraderie in the face of union and trial lawyer power, Georgia is traditionally a more individualist environment. Business groups and their advocacy counterparts were less likely to take on the establishment. Rivalries between certain business and advocacy groups, differences of opinion among the medical organizations, and the perception of alliances with the former Democratic majorities could have all killed this year’s effort. But two unique dynamics made the difference in Georgia.

 

First, the legislative leadership made it clear to the four major entities advocating civil justice reform that unity among the groups was critical. One leader laid it on the line for the participants by saying, “Either you’re all with us, and support all of this together, or you’ll get tossed off the bus.” Major credit is due to the leaders who saw that in order to get the job done in 2005, absolute unanimity of purpose and message would be needed.

 

Second, and perhaps more important, Georgia attracted national attention with its efforts. Beginning in the

 spring of 2004, when Southeastern Legal Foundation hosted a civil justice symposium with lawmakers, business leaders, and national experts like Steve Hantler -- the Chrysler LLC counsel who spearheads state-by-state efforts and nationwide alliances such as the American Justice Partnership --  intervened in the process to make it clear that Georgia is important to national reformers.

 

In the years before the symposium, support for civil justice reform was scattershot, and the public “dialogue” was poisoned with anecdotal medical horror stories that inevitably made their way to newsprint, courtesy of the trial lawyers’ organizations.

 

The symposium, however, was hosted by the non-aligned Southeastern Legal Foundation, a public policy-driven organization that provided a platform for candid discussion. In attendance -- and participating in three separate panel discussions -- were corporate CEO’s and general counsels, lawmakers from both political parties, national reform leaders like Hantler and, yes, even trial lawyers. The candid discussion, although heated at times, provided a safe haven for the parties to talk substance rather than throw rhetorical bombs.

 

By design, the symposium’s goal was to establish a continuing “dialogue” through a Civil Justice Reform Working Group. Corporate leaders, several trial lawyers (including the soon-to-be-Speaker of the House, Glenn Richardson), and lawmakers engaged in a winnowing process to determine what legislative priorities the group would recommend. Remarkably, four of the five recommendations, excluding collateral source offset, made their way into the new laws.

 

AJP President Dan Pero followed up Hantler’s galvanizing participation with repeated visits to Georgia

before and during the legislative session, meeting directly with lawmakers and the various advocacy groups. This “hands-on” approach created a rallying point for those organizations promoting tort reform in Georgia. The state’s parochial and notoriously slow-moving business-to-government/government-to-business process of public policy and lawmaking, which often relied solely on individual relationships with the former legislative leadership, vanished with the knowledge that national interests were at play in Georgia’s debate over civil justice reform.

 

Look to past successes, and utilize tools from those experiences.

 

Another key factor to the Georgia legislative success this year was a smart utilization of resources from other states that had previously taken steps toward civil justice reform. By anticipating what the trial lawyer opponents would argue, experts were arrayed for legislative testimony in support of the reasonable legislation.

 

Texas Rep. Joe Nixon, who was instrumental in last year’s success in his home state, appeared before the Georgia Senate committee to convey the nuts-and-bolts about the impact of reform in his state. Southeastern Legal Foundation also made available two important individuals from our neighboring state, Florida, which enacted reforms several years ago. Former Florida House Speaker (now U.S. Rep.) Tom Feeney and former House Rules chairman Joe Arnall (now a trustee with Southeastern Legal Foundation), were prepared to fully address the dynamics of change in Florida. Arnall met privately with Georgia legislative leaders to convey the ‘realpolitik’ of business community support and trial lawyer opposition, and what that would mean for each lawmaker.

 

Look to the federal rules and practice for guidelines.

 

On at least three of the five issues approached in Georgia this year, the “reform” suggested was essentially a restatement or recasting of an existing federal rule of procedure or evidence. Consider that offer of judgment/settlement has existed in the federal court system for decades, and that the strict Daubert standard for expert witnesses is a U.S. Supreme Court mandate. In terms of “selling” the concepts to wary lawmakers, the fact that many of the good ideas suggested for state-level reform are essentially in play at the federal court level is a major plus. Pro-reform lawmakers who must publicly defend the proposals will need that ammunition for the argument that, in fact, reform is reasonable.

 

Don’t count on federal legislation to solve state issues.

 

Despite the fact that President George W. Bush and his pro-business allies in Congress have approved class action “reform,” which essentially mandates that class action lawsuits will be heard in federal courts, future reform efforts at the congressional level will meet with heightened resistance. The American Bar Association, national trial lawyers’ groups, and their allies on Capitol Hill have essentially said further reform is dead on arrival. As President Reagan did during his term, Bush’s advocacy from the bully pulpit of the presidency will be an important spur for state legislatures to take action.

 

Consider too, that many state-level reforms enacted in regions where the political will is present, go far beyond any proposed federal reforms to balance the legal system and limit the jackpot mentality. Should resources be spent to win congressional battles? Absolutely, but not to the detriment of state-level efforts, which are critical to the economic vitality of a given state in which reforms are needed.

 

Message is key.

 

As a professional message-maker, I am biased toward the view that public message is key. Nevertheless, Georgians desperately needed a fresh view of civil justice reform after years of apparent battles between “doctors and lawyers.”

 

First, business and medical advocacy organizations must take their message to the media. Perceived media bias against civil justice reform, while true to an extent, is in practice a result of the fact that the trial lawyers have paid for expertise. In Georgia, organizations like the Southeastern Legal Foundation and the Georgia Chamber blanketed the media with op-ed articles and news releases on the facts about civil justice reform. If you don’t have the in-house capability, hire it. You can’t afford to yield the field of battle to the opponent.

 

Second, coordination of message is critical. While some organizations, like the medical groups, are better prepared to deal with issues like caps on damages and standards of care for doctors, business, medical, and advocacy groups should be prepared to reinforce each other’s messages. Circulating regularly updated talking points among the groups is helpful.

 

Third, hit your messages early, often, and consistently. Become proactive rather than responsive to the trial lawyer assault. We know what the trial lawyers have said in the past and, in Georgia, they were caught flat-footed by the aggressive and thoughtful messages of the reformers, who addressed each of the concerns in turn.

 

Fourth, make the messages “bread-and-butter” in nature. Lengthy diatribes about medical procedures, business conduct, and the like will lose the audience. As a side note, remember that your “audience” is both the electorate and those whom they elect. Georgia House Caucus policy director Susan Lacetti Meyers, in concert with leadership, coined a critical message for this year’s efforts: “Litigation tax cut.” Through paid media on radio, and in multiple op-ed articles from various state lawmakers, Meyers was able to convey a simple message that a runaway legal system hits consumers in the pocketbook and affects their access to services.

 

Finally, emphasize the point that reforms are common-sense, not radical. A question repeated by Southeastern Legal’s Goessling during testimony was, “If it works in the Atlanta federal courthouse, why can’t it work three blocks away at the state courthouse?” Civil justice reform is not a new idea, and forty-four states have taken some steps toward reform in the past seven years. These ideas are not self-serving, nor are they foreign. Responsible civil justice reform makes the entire process more balanced, more transparent, and more predictable for all participants. Georgia’s success in 2005 is based on these messages, and can easily be adapted for other states seeking reform.

 

© 2005 Todd Young