Before this fall’s elections, business leaders were poised to push a package of bills that would limit access to Louisiana courts and thereby choke off the civil lawsuits they say are frivolous and discourage companies from expanding and hiring more people.
That was assuming one of the three Republican candidates — all of whom had embraced, at some level, the need for further “tort reform” in Louisiana — won the governor’s race.
Instead, the Democratic candidate, John Bel Edwards, will be inaugurated Jan. 11.
While not a so-called “trial lawyer” himself, as a legislator Edwards championed their positions. The lawyers who represent injured parties argue that “tort reform” is really a way for businesses and their insurers to duck responsibility for their actions and deny civil plaintiffs their day in court.
The governor’s race focused on budget and character issues, but the campaigns were funded, in large part, by those wanting to change Louisiana’s legal system and those who oppose that effort.
U.S. Sen. David Vitter, the Republican standard bearer in the runoff, repeatedly promised business interests that he would move their tort reform agenda in his first year as governor.
In a recent meeting with insurance industry executives, Edwards said he was open to discussion but that, as far as he was concerned, the “status quo” was good enough.
Chuck McMains, who as a state legislator in the 1990s sponsored sweeping changes to the way personal injury lawsuits are handled, said the takeaway from that meeting was that Edwards would not allow any rollback of the existing laws. “But he hinted strongly that people would have to make very strong arguments” to get any new initiatives passed, said McMains, now a Baton Rouge lobbyist who represents insurance companies.
McMains also represents the U.S. Chamber of Commerce, whose Institute for Legal Reform relentlessly criticizes Louisiana for what it claims is a toxic legal environment and that last week released a report again ranking the state at 49th.
Though legal scholars discount the U.S. Chamber’s reports, the rankings are a touchstone for Louisiana tort reform proponents, such as the Louisiana Association of Business and Industry.
A powerful business lobby, LABI has a package of bills it claims would “discourage meritless cases.” With Edwards in the Governor’s Mansion, LABI will take a “wait and see” attitude, said its leader, Stephen Waguespack, adding that Edwards has promised to work with everyone.
“It’s too early to tell what’s going to happen,” Waguespack said. “We’re going to continue to articulate what we think is necessary, what we think is fair.”
Edwards has opposed bills that would tighten the rules on where a lawsuit can be filed and lower the threshold needed before a jury — as opposed to a judge — can decide a case. At $50,000, Louisiana’s threshold for jury trials is the highest in a nation where the average is $2,000.
Edwards is a lawyer but not a “trial lawyer,” at least by the tort reformers’ usual definition: “the growing class of wealthy and highly influential plaintiffs’ lawyers that use political clout and sophisticated marketing tactics to pursue clients and generate lawsuits with the ultimate goal of increasing profits.”
His grandfather and his father were sheriffs, so Edwards basically grew up in the courthouse.
He is more of a small-town general practitioner, handling contract reviews, real estate transactions and business matters. “We really have a country law practice that does not specialize at all,” Edwards said in a September interview.
Though his office is next door to the Tangipahoa Parish courthouse, Edwards rarely went to court. He has handled a very modest 33 case files, going to court for successions, debts owed to shops and disputes between small businesses.
The handful of personal injury lawsuits — the traditional fare of a trial lawyer — he handled were settled. His largest award from a jury was $300,000 — he had sought $850,000 — for a woman suffering lifetime injuries from an accident caused by a company vehicle pulling out of a side street in front of her.
A tort reform advocacy group, Louisiana Lawsuit Abuse Watch, reported during the campaign that “trial lawyers” contributed more than $685,000 in support of Edwards’ gubernatorial campaign, “in addition to the $328,000 that they gave him from 2008 to 2014 while he served as their point man and spokesperson in the statehouse.”
It’s true a good deal of Edwards’ money came from lawyers who represent people who sue companies and insurers. But he also received, in almost equal amounts, contributions from lawyers who defend businesses and insurers, as well as from the health care industry, a frequent target of civil lawsuits.
But the oil and gas industry — one of the big promoters of tort reform — didn’t rally for Edwards.
In 2014, Edwards led the opposition in the Louisiana House to bills that negated a Southeast Louisiana Flood Protection Authority-East lawsuit by reaching back and changing the conditions under which a public agency could sue.
SLFPA-E, the levee board, filed a suit claiming that 97 oil companies failed to abide by their permits in digging and then abandoning about 10,000 miles of canals through the marshes. The suit said that damage contributed to saltwater intrusion, killing vegetation and causing the erosion of wetlands that served as a buffer against the full effect of hurricane storm surges.
Edwards — and other lawyers, including some Republicans — said retroactive maneuvers to kill such a suit undermined the legal system.
Gov. Bobby Jindal quickly signed the bill into law. A federal court later dismissed the lawsuit, but that judgment is on appeal.
“I opposed Jindal and the majority of the Legislature when they killed the (levee board) lawsuit,” Edwards said in an interview this month. “I think that was a mistake. I think the day’s going to come when we’re going to ask Congress to pony up federal tax dollars to fix our coast, and they’re going to be much harder to convince because we will not have done what we could have done locally.”
Edwards said he would convene a meeting of oil and gas company executives to discuss these and other issues.
“If they don’t want litigation, then they ought to voluntarily step up and do some meaningful restoration. And if they are amenable to that, we can do some wonderful things,” Edwards said. “They say that they will respond but didn’t want to have to do it through litigation, so we’ll give them an opportunity.”
Robert E. Kleinpeter, a Baton Rouge lawyer who represents injured plaintiffs, said the tort reform fight has been going on for decades and likely will continue for decades more.
“Tort reform seems to only favor insurance companies and large corporations over regular folks, working families and small businesses,” he said.
In the meantime, Melissa Landry, who heads the pro-tort reform Louisiana Lawsuit Abuse Watch, said she hopes the other side listens when business owners say it’s not taxes and not regulators that keep them from investing in Louisiana and hiring more of the state’s residents.
“It is the legal climate in Louisiana that is keeping us from growing and expanding,” Landry said. “All we’re asking is for an opportunity to have a discussion — to make that case and to try to find some common ground.”
Stephanie Grace and Will Sentell of The Advocate contributed to this report.