Expert Advocacy

Oklahoma Tort Reform Measure Revisited

Clayton Hasbrook, an Oklahoma City personal injury lawyer with the law firm Hasbrook & Hasbrook, recently cited our blog and our post about the Oklahoma Tort Reform bill.

Given that he represents the very people this bill will affect, Clayton has some strong opinions about the bill.

Oklahoma Tort Reform: An Unfounded and Misguided Attack on Injury Accident Victims

About a month ago, we wrote about the emerging and ongoing efforts by Oklahoma Republican legislators and former medical malpractice defense attorney and Oklahoma Senate President Pro Tem Glenn Coffee (R-Oklahoma City) to initiate a new batch of tort reform measures. In our post, we argued that the Oklahoma tort reform plan does not go far enough because it does not require doctors to take substantive positions regarding their own negligence.

However, the Oklahoma tort reform measure keeps growing additional reform measures–all of which hurt Oklahomans and are being sold to the public as a way to prevent “greedy plaintiffs’ lawyers” from profiting from “frivolous lawsuits”. Never mind the fact that the job of barring frivolous plaintiffs from recovering is the role of the insurance defense lawyer and judge, not the Oklahoma legislature.

The most recent Oklahoma tort reform attacks include special class action rules for lawsuits brought against tobacco companies, a cap on non-economic damages (also known as “pain and suffering”) at $300,000, expert certification before a lawsuit can proceed, and requiring consumers to “opt in” rather than “opt out” of class action litigation.

One of the more egregious tort reform measures interferes with an injury accident victim’s ability to find a lawyer by placing compensation restrictions on that attorney. Contingency fees, meaning fees which are only collected upon a successful completion of litigation, are capped at 33 percent of the first $1 million dollars recovered under the proposed measure. For higher awards, the contingency fee award is limited at 20 percent.

While some may not appreciate the effect the contingency fee cap would have on the civil justice system, I can personally tell you that the proposed cap would make it nearly impossible, if not completely impossible for some people with legitimate injury accident claims to find an attorney. A contingency fee arrangement allows someone who cannot afford to hire an attorney at $300 or $400 per hour (rates normally charged by insurance defense counsel, and paid by insurance companies to defend lawsuits) to hire an attorney. A contingency fee spreads the risk of failure from the client alone to both the client and his attorney. The rate charged reflects the anticipated value of services provided to the client (as well as the risk of failure) relative to the anticipated value of the case. It is not unusual for lawyers in simple, straightforward claims to charge less than 33%. Similarly, it is not unusual for lawyers in far riskier cases to charge as much as 40-50% for their fees. The fluctuation in the rate reflects the additional risk that the attorney might not ultimately be paid for his time.

What happens if the rate is artificially capped? Injury accident victims in riskier cases might not be able to find an attorney on a contingency fee basis because the anticipated risk calls for a fee that is higher than the capped rate set by the legislature. In those cases, lawyers might decline a contingency fee relationship and propose an hourly fee arrangement that most injury accident victims simply cannot afford.

Meanwhile, like all tort reform measures, the Oklahoma tort reform bill does not place any additional restrictions or requirements upon insurance companies or insurance defense counsel regarding their fees. Insurance companies can still pay however much they decide is appropriate to hire the best legal defense team they can. This is simply not fair and Oklahomans bear the sole cost of this unfairness.

If you live in Oklahoma, write to your governor and legislator and inform them that you do not support the Oklahoma tort reform bill.