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Moments after state Rep. Joe Nixon stepped onto the dais of the Texas House of Representatives to begin debating his omnibus tort reform bill, the metamorphosis of Texas politics was complete. The House, always a rough-and-tumble place, got even more raucous on May 19 — the day Nixon, a Houston Republican, introduced House Bill 4. Tort reform always had been a tempered matter in the House, doled out in small portions because those who opposed it, such as trial lawyer groups, still had power and support in the House. But tort reformers had an easier time pushing their agenda in the 78th legislative session because the Republicans — who typically are more sympathetic to their cause — took over the House for the first time since Reconstruction. Nixon exemplified the shift in power from the Democrats — who’d governed the House since the late 1800s — to the Republicans. As a result, the Dems had to revise their strategy. Rep. Craig Eiland, D-Galveston, tried to figure out how to be effective without power. He chose quiet persuasion as his method, numerous House observers say. For other legislators who opposed tort reform, tempers flared and harsh words were exchanged during the floor debate between Democrats who warned of the harm the bill would do to people with genuine civil claims and Republicans who carried the flag of tort reform to protect Texas businesses and doctors. Nixon would find out what the consequences were for believing in the tort reformers’ cause. The ambitious tort reform agenda included capping non-economic damages on medical malpractice cases at $250,000; restricting class-action cases; and forcing a losing plaintiff to pay defense attorney’s fees if the jury awards a plaintiff less than what the defendant offered as a settlement. After Nixon introduced H.B. 4, the tort reform debate raged in the House for two solid weeks – the most intense and lengthy of any single issue the House has seen in recent history, Nixon says. “It wasn’t [about] tort reform,” Nixon says of the debate, one of the most memorable of the session, which concluded on June 1. “It was a change in the political nature in the House. And my bill was the lead bill. I represented something to the party that was no longer in power.” Nixon, 46, a commercial litigator and partner in Houston’s Phillips & Akers, had done more work to defeat bills in previous sessions than to pass them — he’s only passed a handful of bills in his five terms, he says. But during the 2003 legislative session, he found himself in the unfamiliar role of carrying H.B. 4, a pet bill of Gov. Rick Perry and Speaker of the House Tom Craddick, both Republicans. On the other side of the debate sat Eiland, 41, a small-firm practitioner tagged by fellow legislators in his four previous sessions as a rising star and an influential member in the House. This session he found out what it was like to have his arguments against tort reform drowned out on the House floor, no matter how persuasive they may have been. “We had a gun with no bullets,” Eiland says of himself and fellow legislators who opposed H.B. 4 and filed more than 300 amendments in a futile attempt to stop tort reform. Nixon and Eiland were two of the most interesting lawyer-legislators involved in the tort reform debate in the House. Four lobbyists give Nixon a lot of credit for passing a huge bill while weathering personal attacks, but allege that he sometimes appeared to be unyielding by not allowing a productive debate on H.B. 4. And Eiland earns praise for making the best of a bad hand. Nixon “had power and great authority and did not maximize that opportunity,” says a business lobbyist, who requests anonymity. Eiland “was in the minority and did what he needed to do for his constituents.” Calm and Cool Nixon, who is board certified in civil trial law by the Texas Board of Legal Specialization, says the Republican leadership and special interest groups chose him to carry the tort reform bill because they believed in him and his ability to articulate their positions. Nixon has no doubt that limiting plaintiffs’ claims will help keep doctors in business and their malpractice premiums from skyrocketing. He spent untold hours researching the bill, staying at the Capitol to work on H.B. 4 long after other House members went home to their families. “There really wasn’t anybody else who had the breadth of practice to understand the entire thing,” Nixon says of the 96-page bill. Even though he knew the bill inside and out, he was unprepared for the amount of opposition he faced when H.B. 4 made it to the House floor. Nixon says opponents tried to derail his bill with three strategies: attacking him personally in an effort to make him lose his cool; hoping he’d lose his temper and lose the support of fellow Republicans; and loading the bill with amendments to make the debate go as slow as possible. “These guys tried to goad him into losing his temper, and he never lost his temper,” says another business lobbyist who requests anonymity. “He was the one guy in the House that could carry that bill. He is such a well-versed guy. He just knows this stuff, without notes.” During the debate, H.B. 4′s opponents filed a complaint with the Travis County District Attorney’s Office alleging that Nixon, chairman of the House Committee on Civil Practice, violated open meetings laws because he considered H.B. 4 in private meeting on Feb. 26 and combined it with another bill. In a May 14 letter to Susan Weddington, chairwoman of the Republican Party of Texas, Gregg Cox, director of the Public Integrity Unit at the DA’s office, wrote that Nixon hadn’t violated the Texas open meetings law (which doesn’t apply to the Legislature) and declined to open a criminal investigation against Nixon. Nixon describes the controversy as “hilarious.” Different Roles While tort reform opponents attacked Nixon and H.B. 4, Eiland worked steadfastly, reminding whoever would listen that H.B. 4 likely would not decrease insurance rates for doctors and would punish plaintiffs with legitimate claims. Eiland tried to work within the system instead of obstructing the debate on H.B. 4, five House observers say. Eiland sponsored some of the 300-plus amendments to the bill, but withdrew some of his amendments when it became clear they would not receive support from a majority of House members or duplicated other amendments proposed by H.B. 4 opponents. “Somebody had to take a hard-nosed, no-holds-barred approach,” Eiland says speaking of the more in-your-face tort reform opponents in the House. “That wasn’t my role.” Eiland was more effective behind the scenes, four lobbyists say. He met with Nixon about his concerns, and Nixon listened. “We went through all of his suggestions,” Nixon says. One of Eiland’s recommendations that Nixon agreed to involved getting rid of a proposal in the bill that a plaintiffs attorney in a med-mal case could be paid his fee over a number of years if he won a case. Eiland also convinced Nixon to eliminate a proposal in the bill dealing with prefiling depositions in med-mal cases. “I have both privately and publicly complimented Craig in his professionalism,” Nixon says. “It’s OK to have a difference in opinion.” Eiland went to Nixon’s committee hearings on the bill, and when Nixon didn’t recognize him to ask questions about the bill (Eiland is not a member of the House Civil Practices Committee), Eiland filed a witness application with the committee and testified before the committee about the bill and his concerns, he says. He even passed notes with his questions written on them to committee members for them to ask of witnesses. One business lobbyist who pushed for tort reform says many H.B. 4 opponents were “wildly unsuccessful” because they acted as obstructionists. Eiland, on the other hand, used a kinder, gentler approach. Tort reform opponents “had a chance to come to the table and play. Craig Eiland got in there and made a difference,” the lobbyist says. “He didn’t get out there and piss everyone off. He’s a class guy, and people trust him.” Plans for the Future Eiland feels that H.B. 4 did not get the full hearing in the House that it did in the Senate. He believes the Senate listened to more of his strongest concerns about the bill — especially regarding a proposal that would have allowed a party in a medical-malpractice case to move to have the case sent to a “specialized court,” a measure plaintiffs and defense attorneys opposed because they believed it amounted to “forum-shopping.” The Senate eliminated that proposal. He says he had to register his objections to the bill — such as the $250,000 cap on non-economic damages in medical-malpractice cases — as a way of setting up future debate with his colleagues in the Legislature. “In two years, we can say, ‘Here’s what these laws you voted on did to people in your district,’ ” Eiland says. “ It didn’t change insurance rates. Is there any way we can modify this?” In the end, Nixon got the bill he wanted voted out of the House with the majority of members following his lead in almost every vote on the measure. But it left hard feelings on the floor, says Rep. John Smithee, R-Amarillo. Nixon appeared to limit the debate at times, Smithee says, by calling motions to the table quickly. “One criticism was his unwillingness to debate the bill and that’s probably legitimate,” says Smithee, a partner in Amarillo’s Templeton, Smithee, Hayes, Heinrich & Russell. “But as far as his ability to get all of his issues in the bill and get them passed, you have to give him high marks.” Nixon says he’s heard plenty of complaints about him not yielding to opponents during the floor debate, and he says it’s an unfair allegation. He says he met with the opposition for hours even before he filed the bill. He also says he consulted the Texas Trial Lawyers Association, which strongly opposed the bill, and heard numerous hours of public testimony. But Tommy Fibich, legislative liaison for the TTLA, claims Nixon “wouldn’t listen to our side.” Fibich, a partner in Houston’s Fibich, Hampton, Leebron & Garth, says, “It was the rawest display of power I’ve ever seen.” Nixon strongly disagrees with Fibich’s assessment. “The criticism that is often leveled at me is I didn’t debate anybody,” Nixon says. “But I stood on the floor of the House for 80 hours answering questions.” Even though plaintiffs lawyers complained loudly about the bill, Nixon believes he isn’t given enough credit for keeping some proposals out of the legislation, such as a recommendation to disallow plaintiffs attorneys to recover fees from punitive damages awarded to their clients. “There were a lot of things people wanted in the bill that I said ‘no way,’ ” Nixon says. “ I wish I’d kept a list.” Nixon says he’s proud of the bill. He believes the legislation, which Perry signed into law on June 11, is really about policy and how Texas can best deal with its medical-malpractice litigation crisis. “It will bring fairness to the system,” Nixon says of H.B. 4. “I think you’ll see doctors’ medical-malpractice [insurance] rates go down.” Still, Nixon may have more to learn about how to deal with his newfound status and power and how other members perceive him, says a lobbyist who requests anonymity: “You have to learn not so much how to use power but how to manage it. It can cost you in the future.”

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