Insurance Commissioner Jim Donelon 021720

Insurance Commissioner Jim Donelon told the Press Club of Baton Rouge on Monday, Feb. 17, 2020 that he would back what he calls "tort reform" legislation this year.

In his spirited attempt to pass legislation that he says will lower auto insurance prices by 25%, Insurance Commissioner Jim Donelon has taken to blaming boogeymen: television lawyers.

“Right now, the system is set up for those who are advertising and can afford to advertise and can scoop up all these soft tissue injuries that used to get to the corner lawyer’s office,” Donelon said recently.

He finds little fault with the cases trumpeted in ads by the winners of a few hundred thousand-dollar judgments. Those cases likely involved serious injuries that needed serious compensation.

While those are results widely advertised, the bulk of the cases involve what is called in the trade “soft tissue injuries,” that is, sprains and pains that are hard to document.

Louisiana’s civil justice is set up so that it is often cheaper for the insurance companies to pay policy limits — the minimum legal requirement is $15,000 per person and $30,000 per accident — than to go to court and fight, Donelon said.

Louisiana is about in the middle of the nation’s statistics when it comes to the rate of accidents. And the number of claims for property damage is just a little higher than the national average. But the number of lawsuits claiming bodily injury are almost double the national average, according to the insurance industry.

And while much legislative attention has been on Sen. Kirk Talbot’s bill that opponents say would restrict injured people’s day in court, no fewer than seven measures address lawyer advertising.

Legislators may have taken notice that the public seems OK with car ads that tout gleaming vehicles speeding carefree down winding roads while not mentioning high repair bills. But for lawyers, legislators seem to think the public wants advertising to be more exacting, like how much those big judgments amounted to after expenses and fees were subtracted. 

A handful of advertising measures are poised to clear the process by the time the regular legislative session adjourns Monday at 6 p.m.

One, Senate Bill 115, by Sen. Patrick Connick, a Republican lawyer from Marrero, would require advertisements for legal services that mention settlements or jury awards to also disclose attorney fees. The Senate gave final approval Friday.

Another, Senate Bill 395, is similar but would allow the Attorney General to regulate ads through his consumer protection authority. That measure, filed by Sen. Heather Cloud, a Turkey Creek Republican businesswoman who owns a trucking company, passed the House Friday after waiting for estimates about how much investigations would cost.

SB395 tracks the wording of laws in Tennessee and Texas that went into effect in late 2019 and immediately were threatened with legal challenges, though none have been filed yet.

Slidell Republican Sen. Sharon Hewitt, who retired from the oil and gas industry, wanted to put some sort of seal on attorney ads saying they have been vetted and found OK by the State Bar Association. But Hewitt butted up against a near 50-year-old U.S. Supreme Court ruling that found lawyers have the same rights as car dealers to hawk their wares.

Hewitt switched her bill to a resolution that urges the Louisiana Supreme Court and the Louisiana State Bar Association to consider a “lawyer advertisement review recognition program.”

All this legislative activity prompted a three-page letter from Chief Justice Bernette J. Johnson, of the Louisiana Supreme Court. The high court rarely gets involved in legislation and has stayed far away from Talbot’s bill.

“We share the Legislature’s concerns over the sheer volume and pervasiveness of attorney advertisements throughout our state, and the possible connexity of these advertisements to Louisiana’s culture of litigation,” Johnson wrote to Senate President Page Cortez, R-Lafayette, and House Speaker Clay Schexnayder, R-Gonzales.

The high court has been looking into the issue for decades. But the chief justice points out that since the 1977 U.S. Supreme Court ruling, dozens of cases have been litigated and all have reaffirmed lawyers’ right to advertise.

In 2006, Louisiana’s highest court studied attorney advertising at the urging of a resolution sponsored two Baton Rouge lawyers: then Sen. Rob Marionneaux, D-Maringouin, and then Rep. Donald Cazayoux, D-New Roads.

The study led to new rules that were immediately challenged in federal court at a cost to Louisiana taxpayers of about $500,000 in legal fees.

The high court “supports the Legislature’s efforts to curb misleading advertising by any professional, including lawyers, on the basis of consumer protection and deceptive trade practice principles,” Johnson wrote.

But she cautioned that such legislation erodes the Louisiana Supreme Court’s authority to regulate the practice of law. The high court’s comments also alluded to a very real possibility these measures could lead to expensive legal challenges at taxpayer expense.

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