Trial experience leads to steady stream of referrals for new firm

Tough limits on medical liability lawsuits have taken hold in Texas, and the number of attorneys applying to be certified personal injury trial lawyers has dipped to its lowest level in four years.

But if there's a crisis in the occupation of suing hospitals, truck driving firms and pharmaceutical companies, someone needs to tell the folks over at Dallas-based Miller Curtis & Weisbrod L.L.P.

Les Weisbrod, Clay Miller -- both of who are bar certified injury trial lawyers -- and William B. Curtis say their business is increasing, in part because of out-of-state referrals, and a drop in the number of lawyers with jury trial experience.

The story they tell of an increasing legal practice is contrary to what other plaintiff's attorneys tell, in light of the 2003 passage of HB 4, which capped noneconomic damages for medical liability cases at $750,000.

The number of attorneys applying to be certified personal injury trial lawyers has declined since 2002, when 98 attorneys took the step. Thus far in 2006, 59 lawyers have applied for the designation, according to the Texas Bar Association.

But Miller Curtis claims it has continued to make money despite the efforts of some Texas legislators.

Weisbrod, who was recently elected vice president of the American Trial Lawyers Association, said the firm gets calls daily from lawyers hoping to refer complex vehicle accident or other commercial litigation, with hopes that his firm will pick up the case.

If successful, Miller Curtis -- or other plaintiff trial firms -- will pay them a percentage of the attorney's cut, or a flat fee.

They said it isn't unusual for newly graduated lawyers to advertise for clients, hoping to attract simple fender-bender accident cases, but then to refer more complex cases.

Referrals from the state of Arkansas have been more frequent, they say.

"They have no medical malpractice caps," Weisbrod said. "I settled what I believe to be one of the biggest medical malpractice cases in Arkansas two years ago."

The $6 million settlement involved a child who was brain-injured due negligence of a hospital and an obstetrician. Another Arkansas medical malpractice case resulted in a $3 million award.

Weisbrod said many Arkansas lawyers saw the awards and decided to start referring cases to his firm.

Referral rules

In Texas, rules recently changed on how cases can be referred. Now law firms must spell out how much work the referring practice performs, as well as how much work the recipient firm performs, as well as how much the referral fee is. In any case, referring lawyers and the firm that handles the bulk of the case both must perform some work for plaintiffs, according to Texas Bar rules adopted last year.

However, Weisbrod said that the firm already followed practices that conformed to Texas Bar rules before they were adopted.

Seldom are clients upset when they learn their cases are referred to Miller, Curtis & Weisbrod, he said.

"The client is grateful they found us," Weisbrod said. Weisbrod recently left the law firm of Morgan & Weisbrod to team up with Miller and Curtis, after the trio successfully tried jury cases together. Combined, their new firm comprises the biggest nonasbestos plaintiff litigation firm in Texas, based on the number of employees (about 35, including 12 attorneys).

Miller credits many of the referrals to the fact that trials are becoming more expensive, prompting more out-of-court arbitration and mediation to settle disputes. As fewer cases go to trial, Miller expects his firm to get more referral calls on the cases that make it that far. He also said that because the Texas Bar requires lawyers to have 10 jury trials to qualify as personal injury trial lawyers, the lack of trials has reduced the number of attorneys applying for the specialization.

Weisbrod predicts that the wave of tort reform, conservative judgments and low jury verdicts will eventually reverse itself in Texas.

"People will realize they're being duped by corporate interests," Weisbrod said. "Essentially, they've been led to believe that giving up individual rights would somehow make products cheaper, health care more accessible and put more drugs on the market, none of which are true."

However, organizations such as the Pacific Research Institute, a free-market think tank, point to their own research that shows caps on legal fees and other laws have reduced the cost of living and cost of business, as well as made it easier for physicians to afford malpractice insurance.