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Tort Reform: New / Old Approach

August 23, 1987

A package of bills to change the rules covering California damage suits will start working its way through the Legislature next week. If it survives, it could be the start of something old.

Something old in the sense that the measures represent a return to the art of give-and-take in shaping legislation so that nobody goes away empty-handed and nobody gets so much of what he wants that it takes a wheelbarrow to move it out of Sacramento. The root word of parliament, after all, means, loosely translated, talking things over.

For at least 10 years the new style has been to present demands for reform, complain that lobbyists are blocking sorely needed new law, and go public with expensive initiative campaigns that skirt complicated issues and present them as fights between good guys and bad guys.

None of this is to suggest that the California Legislature is a paragon of equitable compromise, or that lobbyists do not have an unseemly influence on legislators who spend at least as much time raising money as they do raising issues. But the process did work better without wheelbarrows.

The package of bills to change state tort rules is a step back from the new style. Tort rules were last changed just over a year ago, when voters approved Proposition 51--the so-called deep-pockets initiative--and limited the financial liability of any one defendant in cases in which more than one party was at fault. The $10-million campaign for Proposition 51 was orchestrated by the insurance industry, but the centers of attraction were cities and counties whose insurance rates were climbing sharply--if they could buy insurance at all--because they often were the only defendants with pockets deep enough to handle big damages. Whether deep-pockets has worked is a matter of debate, but the changes were worth trying. Now a new tort-reform initiative is waiting in Sacramento to be cleared for the collection of voter signatures: one that would take the next step--putting a ceiling on lawyers' contingency fees, for example, and making it more difficult for injured parties to collect punitive damages, even in cases in which gross negligence is involved.

Supporters of the new initiative are mostly the supporters of Proposition 51--insurance companies, industry and the medical profession. But city and county governments will not be central figures, because they have agreed with the state's trial lawyers that they can live with the reforms that are outlined in the new package of bills.

One would set new rules for settling suits involving damage or injury during police pursuits. Another would limit government liability in accidents on public beaches. One would allow governments that are self-insured to pay off big damage awards in installments, with interest, so that a public treasury would not be drained dry in any one year. All of the terms were worked out in a series of conferences initiated by Atty. Gen. John K. Van de Kamp.

This is a case of compromise, not altruism. Clearly the trial lawyers had in mind avoiding the kinds of ceilings on contingency fees that are part of the new initiative. Solving city and county problems may not solve the problems of other potential defendants.

Still, the package ought to go through if it represents terms with which cities and counties can be comfortable in litigious times. Even if it does not head off a new initiative fight this time, it could be the beginning of something old.

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