Once foes, Florida Republicans, trial lawyers find conservative agenda is common ground
BY LAWRENCE MOWER - UPDATED MARCH 02, 2022 6:46 PM
For decades, Republicans have railed against frivolous lawsuits and litigation, blaming them for driving up costs for businesses and governments.
But this year, Florida Republicans are turning to trial lawyers, one of their historic foes, to help enforce their agenda.
GOP legislators are advancing legislation that would allow Floridians to sue Big Tech companies over data privacy, sue primary schools that teach about gender identity or sexual orientation and sue cities for passing ordinances that damage their businesses.
The expanded use of lawsuits to enforce Republicans’ agenda is a shift for the party, and it has business groups concerned.
“There’s a populist strain of Republicans who have allied with supportive trial lawyers, and they’re working to create a slew of opportunities for social grievance lawsuits,” said William Large, president of the Florida Justice Reform Institute, a tort reform advocacy group.
Gov. Ron DeSantis has been one of the primary drivers behind the philosophical shift. Last year, he pushed the Legislature to pass laws allowing Floridians to sue Big Tech companies if they’re censored and to sue schools for imposing mask or vaccine mandates.
He’s also supported the “don’t say gay” bill, which would allow parents to sue their school district if they believe their child’s school is teaching gender identity and sexual orientation in kindergarten through third grade. The bill has yet to pass.
And DeSantis proposed legislation moving through the House this year that would allow Floridians to sue technology companies for selling or sharing user data without consent. The Senate has yet to take it up.
That bill is strongly opposed by the Florida Chamber of Commerce and other business groups, which are some of the largest donors to GOP lawmakers and routinely complain about the amount of litigation in Florida’s courts.
The chamber said Florida already ranks among the most litigious states and that the legal climate hurts local business.
“Any increased frivolous litigation against these local businesses would only further impact Florida’s competitiveness,” Florida Chamber of Commerce President and CEO Mark Wilson said in a statement.
Historically, Republicans have been against expanded litigation and in favor of tort reform. Trial lawyers, who are a powerful lobbying group, have usually found more support from Democrats.
That has changed both nationally and in Florida. In Congress between 2015 and 2018, Republicans were just as likely as Democrats to support legislation that creates individual rights enforceable by private lawsuits, according to a 2021 study by professors at the University of Pennsylvania and University of California at Berkeley entitled, “A New (Republican) Litigation State?”
In a January op-ed in the Wall Street Journal, the head of the American Tort Reform Association criticized legislation allowing employees to sue their employers over vaccine mandates, titling it, “Conservatives for Abusive Lawsuits.”
IT’S A NATIONAL TREND
Like Florida, Republican-controlled state legislatures across the country have introduced or passed laws allowing employers to sue over vaccine mandates and students and parents to sue over mask mandates. Texas lawmakers last year “deputized” citizens to sue abortion providers, a novel approach that amounted to a near-total ban on abortions.
The approach gets to the heart of Republican philosophy on increased regulation, which the party has traditionally opposed. Instead of having state agencies regulate behavior, Republicans are putting regulation in the hands of citizens.
“That’s the philosophical challenge: Do you regulate more? Or do you give access to your judicial system?” said Rep. Erin Grall, R-Vero Beach, a trial lawyer by trade who leads the House’s Judiciary Committee. “Is access to the courts critical? Of course I think it is, and is that better most days than over-regulation? I feel like ultimately it can be.”
The shift is a “sea change” for policy in Tallahassee, said Sen. Jeff Brandes, R-St. Petersburg, one of the only Republicans in the Legislature to argue against the trend.
The influence of the trial Bar has “dripped into everything,” he said, and it’s influenced the type of legislation lawmakers pass or refuse to pass. He cited last year’s decision to overhaul the state’s auto insurance laws without a study, a bill that was supported by trial lawyers but vetoed by DeSantis.
“Everybody feels harmed and wants to take action,” Brandes said. “And so the trial Bar says, ‘We’re happy to glean off of that perspective.’ Everybody wants to sue everybody for everything.”
TOUTING ‘ACCESS TO THE COURTS’
The Florida Justice Association, which represents trial lawyers, said the Legislature has consistently supported “a private market approach to accountability for wrongdoers.”
“The best way to ensure these free-market principles of responsibility and accountability is through access to the courts,” association President Tiffany Faddis said in a statement. “When a government or private business violates an individual’s rights, we must allow these victims [to] seek justice for the harm caused to them by pursuing causes of action.”
Since last year, the association and its political committees have donated nearly $400,000 to statewide or legislative candidates, all of it going to Republicans or political committees supporting Republicans.
Last year, lawmakers passed a law allowing people to sue telemarketers for receiving unsolicited scam calls and text messages.
One California lawyer estimates that about 100 lawsuits against telemarketers have since been filed in Florida.
This year, the scope of bills allowing more lawsuits has startled business groups.
After the accrediting body for the state university system raised questions about a recent Florida State University presidential search and “undue political influence” at the University of Florida, lawmakers proposed allowing institutions to sue their accrediting agency for “retaliatory action.”
In the Senate’s proposed budget, Senate President Wilton Simpson, R-Trilby, included language requiring school districts and some private employers who receive state money to pay employees a minimum of $15 per hour — or face lawsuits by those employees. (He’s also proposing spending $1 billion to help employers afford the increase.)
Meanwhile, the Legislature has been working to raise the caps on “sovereign immunity” — the amount that local governments and agencies can pay out in a settlement without needing legislative approval. The amount would be raised from $200,000 to $400,000 per person, and some Republican lawmakers said this week that it should be higher.
Such a proposal would have had no chance of passing just a few years ago, when lawmakers were resistant to approving such settlements.
Part of the shift, observers say, is that the Legislature has been dominated by lawyers in recent years — four of the last six Senate presidents and House speakers have been lawyers.
“I often say that for too many legislators, the definition of a frivolous lawsuit is one that doesn’t involve me or my family,” said Sen. Gary Farmer, D-Lighthouse Point, a trial lawyer by trade. “Your perspective sure changes when you have firsthand experience.”
Miami Herald staff writers Ana Ceballos and Mary Ellen Klas contributed to this report.