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November 05, 2004


AP on Tuesday's results

The wire service characterizes the outcome on ballot measures as "indisputably a split decision" as regards litigation reform and "a virtual stalemate reflecting deeply divided public opinion". That's a pretty strange reading, considering that:

1) Of nine measures on the ballot dealing directly with litigation reform, the trial lawyer side lost by thumping margins in six (Fla., Calif., the three Nev. measures, and Colo.) and managed to eke out very thin victories in at best three (Ore. and the two Wyo. measures -- although conflicting reports continue to come in as to whether both Wyoming measures lost.) (Update Nov. 9: one of them appears to have passed.) It's true that the trial lawyers can claim broad victories for their two Florida revenge initiatives, but those measures on their face purport to regulate the practice of medicine, not litigation.

2) The trial bar's victories came in small states, and did no more for them than maintain the status quo in those states. Two major defeats for them came in very large and important states (Calif. and Fla.) and in both cases the measures under consideration were big ones which are going to have a major long-term impact on the litigation environment unless struck down by courts.

3) It won't be easy for them to complain about being outspent. Final spending numbers will inevitably differ from those available before the election, but in the biggest contest, that in Florida, the trial bar had as of mid-October out-fund-raised the doctors three to one ($20 million to $7 million). California reform proponents, it's true, outspent the lawyers by a wide margin. But money wasn't enough to push them over the top: Proposition 64 lagged in the polls despite its big ad campaign, and then took fire through a late combination of surprisingly favorable newspaper endorsements and the endorsement of Gov. Arnold Schwarzenegger.

4) Other election results -- including judicial races in Illinois, Ohio and West Virginia, and elections to the U.S. Senate -- were a blowout victory for litigation reformers.

The ABA Journal (Stephanie Francis Ward and Siobhan Morrissey, article not online) more accurately headlines its account "Tort Reform Gains Traction". First paragraph: "Tort reform figured prominently in the Nov. 2 election, and Americans seem to be embracing it, particularly in medical-malpractice cases. And defense and plaintiffs lawyers predict Tuesday's results will influence a revival of federal tort reform efforts." Sounds about right to me.

Posted by Walter Olson at 03:56 PM | TrackBack (2)



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