Insiders Key to Defeat of Rail Deal
Trial lawyers' lobbying arm wields powerful political force.
The Lakeland Ledger - By Joe Follick
March 11, 2008
TALLAHASSEE | All you needed to know about who was winning and losing the battle to bring commuter rail to Orlando you could learn from looking at the faces of lobbyists packed into the Capitol.
As lawmakers worked through the hectic final day of their 60-day session on May 2, lobbyists from CSX Transportation and Orlando scurried through the hallways in a frenzied effort that failed to save the half-billion-dollar deal.
But lobbyists for the state's trial lawyers, who had emerged as the primary opponents, leaned coolly against the limestone walls outside the Senate chambers. Their focus had shifted to the filming of a skit video for their upcoming annual meeting.
After years of secret negotiations, the legislative battle had little to do with the $641 million cost to taxpayers of paying CSX for a 61.5-mile commuter rail system or the cries from Lakeland about the resulting increase in freight traffic through their downtown.
It came down to a question of who could sue whom and for how much. And nobody in Tallahassee is better prepared for that fight than the Florida Justice Association, the lobbying arm of the state's nearly 4,000 trial lawyers.
A POWERFUL FORCE
"I'd argue they're one of the strongest political forces in the state of Florida," said Sen. J.D. Alexander, R-Lake Wales, who fought for the commuter rail deal. "I'd argue they're more powerful than the Democratic Party."
Frank Petosa, the association's president, said the group's mission on the commuter rail deal and other issues is to maintain "the citizens' rights to the courts and the citizens' rights to justice."
Petosa said CSX and the DOT avoided compromise and forced the battle in the Legislature.
"They did not pay any attention to the interested parties," said Petosa. "That was their biggest mistake."
Opponents are respectful of the trial lawyers' power. But they say the Florida Justice Association's aims are not altruistic.
"Even the smallest incremental change that would impact their ability to get into court, they are opposed to," said former House Speaker John Thrasher, who lobbied for the CSX deal on behalf of Orange County. "They will never give up. … I'd give them a grade A."
"Their mission is to protect plaintiffs' attorneys practices," said William Large, the president of the Florida Justice Reform Institute, a business-backed group created solely to battle trial lawyers. "They're very good at what they do."
The downfall of the commuter rail deal was a stunning show of the Florida Justice Association's political power. In January, it was clear that angry Lakeland businesses and lawmakers were losing a battle against powerful Orlando legislators in the House and Senate.
But Sen. Paula Dockery, R-Lakeland, worked with Bartow trial lawyer John Frost to produce a letter that ripped a CSX demand that it be limited from legal liability in accidents involving trains it would still run on the commuter line. That was the only provision lawmakers had to approve to move the deal forward. In January, The Ledger was the first to disclose that aspect of the deal.
When Frost testified about the complicated world of "sovereign immunity" and "legal liability," trial-lawyer lobbyists filled the back rows of the meeting room, giving lawmakers a clear look at a looming battle.
"I had never had a relationship with the trial lawyers in 11 years in the Legislature," said Dockery. "But I went to them and said, 'You all might want to look at this legislation.' At that point, I really needed some allies. I was really out-gunned."
The momentum of the rail deal was halted. The Senate never even voted on the plan despite heated pressure from Orange County politicians, some of the state's most powerful lobbyists, threats from congressmen and a late push from Gov. Charlie Crist.
While trial lawyers did not win every legislative battle this year, they lost very few. They derailed efforts to tighten the rules on using expert witnesses in trials and to give businesses legal protection when employees bring guns to work. And they created new "causes of action" to allow lawsuits, including cases when property insurers do not pay agreed-upon claims within 90 days.
The power of trial lawyers in Tallahassee is rebounding after two terms of hostile offensives from former Gov. Jeb Bush. He once promised to "whack" the trial lawyers, and for eight years, he gave it his all.
In 1999, Bush and lawmakers pushed through new caps on lawsuit awards. Later years saw limited fees on nursing home and medical malpractice lawsuits.
But the trial lawyers' association shifted with the times. More of its campaign contributions went to Republicans, and when Bush, himself, campaigned to defeat state Sen. Alex Villalobos, R-Miami, in a 2006 campaign, the trial lawyers backed Villalobos and won.
Earlier this month, it was Villalobos who raised an arcane parliamentary question that stalled the CSX proposal. One lobbyist recently said the trial lawyers own two buildings in Tallahassee - their own downtown office and the Florida Senate.
The association's power can veer toward hubris. Sen. Al Lawson, D-Tallahassee, said he threw trial-lawyer lobbyists out of a Democratic meeting this year when they pressured lawmakers on the commuter rail deal.
"The trial lawyers had literally taken over the meeting," said Lawson. "They were just hitting us from all sides. … I thought it was my duty to stop them."
Millions of dollars in contributions to candidates and parties over the years only tell part of association's power. It floods the Capitol with lobbyists and allies from around the state, staking out positions near the exits of the House and Senate chambers to corner lawmakers for a quick pitch.
"They put a lot of pressure on," said Lawson. "They were kind of reminding us members of how they were there for us in the past with support, and 'It's time for you to be there for us now.' … There were so many of them, you hated to go outside (the Senate). They had every door covered."
Trial-lawyer lobbyists deflect credit for their role in the commuter deal defeat, saying they were part of a cobbled-together team that included Lakeland businesses, unions fearing loss of jobs, and Dockery and Rep. Dennis Ross, R-Lakeland, who relentlessly pushed fellow lawmakers.
"We've been given a lot of credit … that somehow trial lawyers killed this issue," said Paul Jess, a trial lawyers' association lobbyist. "The truth is, it was really everyone involved."
Dockery agreed, saying Ross nearly killed the deal in the House while she locked down 27 of the 40 senators in a vote that never happened.
"Their (the trial lawyers' association) job was to help me keep people. The getting of votes was up to me," said Dockery. "No doubt I could not have done it without them."
For business groups that are traditional foes of the trial lawyers, the CSX melee combined with the departure of Jeb Bush and growing pro-trial-lawyer sentiment in the Senate may mean a new age.
"I think the trial lawyers see their future is bright in Florida, and they're going to be stronger than they were before," said Large.
"It's very complimentary," said Jess. "We all would like to think of ourselves being in a position to make a difference."