Miers' stand on attorney fee caps questioned

No caps on attorney fees
Though Bush blocked the legislation, the court hasn’t capped attorney fees.

Had the court done so, it would have been “absolutely legislating from the bench,” said Dallas trial lawyer Fred Baron, who opposed long-running efforts in Texas to cap attorney fees.

While limits on fees would affect a range of law firms, they would hit personal-injury lawyers particularly hard, Baron said. Such lawyers typically do not get paid by clients unless they win, often taking a share of the damages. That arrangement has made some trial lawyers rich. It also has allowed people to hire lawyers when they couldn’t afford it.

“The evil was not the fact that the plaintiffs’ lawyers were making money. The evil was that the companies were being sued by victims, and they wanted to stop that, as they continuously do,” Baron said.

Corporate law firms not affected
Such fee limits would be unlikely to affect corporate law firms, which typically charge clients by the hour.

White House spokeswoman Dana Perino said Miers’ position in the letter didn’t amount to using the courts to make law.

“Judges are not legislating from the bench when they are doing what the Legislature has given them the authority to do,” Perino said. “Legislating from the bench means supplanting the will of the Legislature or the meaning of the Constitution with a judge’s own personal policy predilection.”

Bill Whitehurst, who has served as president of the State Bar of Texas and the Texas Trial Lawyers Association, said Miers’ letter can be read in part as a swipe at trial lawyers who were thought to be behind the legislation, but also as an effort to preserve the way the state handled lawyer discipline.

“Harriet is a supporter of President Bush’s tort reform agenda, and I don’t think she’s made any bones about that. But at the same time I believe she’s a lawyer’s lawyer and believes strongly in how we run our bar in Texas and that lawyers should discipline themselves,” Whitehurst said.

In her letter to Bush, Miers warned that those who allowed the legislation to become law would be “smeared with legitimate criticism for a blatant attempt to shield, protect and curry favor with interests that have brought shame on this state, badly hurt our economic development efforts directed at creating jobs and continue to this day to cause our state to be held in disrepute for ‘justice for sale.”’

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