How Legislative Changes Will Impact Trial Law in 2021

By Neale deGravelles

The Civil Justice Reform Act of 2020, House Bill 57 (“HB57”) passed by the Louisiana legislature took effect January 1. The so-called tort-reform bill reduces the jury threshold from $50,000 to $10,000 and requires the party seeking a jury trial to post a $5,000 cash bond before the trial. It also made changes to the Collateral Source Rule that limits the recovery of past medical expenses to the amount actually paid, plus forty percent for the cost of procurement.

Proponents of the bill argued that it would lower auto insurance rates while the plaintiffs’ bar opposed it on the basis that it would pressure plaintiffs into accepting unfair settlements, amongst other reasons. 

Many district court judges also opposed the bill because of concerns that it would result in a significant increase in low-value jury cases which would bog down their already lengthy dockets even further, especially in the wake of the recent decision by the Louisiana Supreme Court to pause all jury trials until March 1 due to the recent coronavirus surge in our state. The seven-week moratorium will further tax an already backlogged criminal justice system, and the new changes to jury thresholds are likely to exacerbate the problem further.

For civil attorneys, the impact of these changes on trial strategy and management is likely to be significant. Here’s what you need to know.

What Changes Were Made to Jury Trials?

The law enacts significant changes to the Code of Civil Procedure, Code of Evidence, and Civil Code Ancillaries. The Louisiana Bar Association opposed the bill, citing “real concerns about specific portions of the proposed language of this bill, believing it may unintentionally result in creating serious, additional problems for our system of justice.” 

Jury Threshold

The jury threshold has been reduced from $50,00 to $10,000. This change was opposed by the Louisiana Bar Association, who argued that would most likely result in significantly-increased costs to operate and maintain courts in the state in the face of what’s likely to be a large increase in the number of requests for jury trials.  

It is important to note, however, that this reduction only applies to tort suits. If there are other matters in which civil attorneys have litigation, the standard $50,000 limit still applies.

Jury Trial Deposit

The second important provision of the act amends Louisiana’s Code of Civil Procedure Article 1733(A)(2)(a). This amendment provides that in tort cases where the amount requested is more than $10,000 but less than $50,000, if the defendant requests a jury trial, the defendant must make a case deposit within a sixty-day window or else the jury request is waived.

Collateral Source Rule

It also made changes to the Collateral Source Rule that limits the recovery of past medical expenses to the amount actually paid, plus forty percent for the cost of procurement, rather than allowing recovery of past medical expenses based on the payments made by a health insurer or Medicare. 

As the Louisiana Bar Association points out, “An injured party should be made whole, nothing more, nothing less.” They argue that the collateral source rule opens the door to potential problems that could prevent that goal from being achieved, such as not taking into account deductibles and copays and other out-of-pocket requirements incurred by the defendant.

How Are These Changes Likely to Impact Court Dockets?

District court judges and legal experts fear that the jury threshold change will result in a dramatic increase in low-value injury cases, worsening the existing logjam in the legal system. The bill failed to allocate any additional funding to the courts to account for the increase in jury trials. 

The Louisiana Bar Association argued that making these changes without increasing funding for the courts could impact criminal cases and even jeopardize a defendant’s right to a speedy trial. If insurers request jury trials on the $15,000 (i.e. minimum limit) insurance policy cases, we could see significant increases in dockets and even longer delays in moving cases to trial. 

To avoid potential problems as much as possible in an environment where more jury trials are highly likely, attorneys must focus on effective case management:

  • Perform your due diligence and investigate the claim thoroughly.
  • Immediately file suit. Decline any extensions on the filing of an answer to the suit. Normal courtesies on discovery and other matters can be granted, though.
  • Immediately ask for a scheduling conference with the court in anticipation of a significant increase in jury trial requests. Getting on the docket as soon as possible will help ensure your case moves forward more quickly.

What Do These Changes Mean for Representing Your Client?

Given the costs of a jury trial, including defense costs (attorneys, deposition fees, doctors and expert witness fees, etc.), as well as the jury costs, which the House Civil Law Committee estimated to be between $16,000 to $23,000 per jury trial last year, the total cost of a jury trial comes in at at least $20,000 to $30,000. 

The defendant would then have to pay the ultimate judgment once it’s rendered, bringing the total costs incurred to $35,000 to $40,000. For attorneys representing defendants in civil cases, they need to seriously consider whether requesting a jury trial is the most prudent choice. 

The new law requiring a $5,000 deposit for jury trials may also serve as an economic deterrent for requesting juries. For example, if a firm files several cases on a minimum limits policy against the insurers, this could compel either the waiver of trials or the posting of cash deposits, providing an economic disincentive for insurers to request jury trials.

For attorneys representing plaintiffs, the threat of greater incurred costs could potentially provide leverage to encourage the defendant to settle out of court. But with long court dockets on the horizon for the foreseeable future, lowering the threshold also helps defendants drag out the process for as long as possible and avoid paying the plaintiff.