BLAKE: Shock and awe, lawyer style

Peter Blake

Thursday, May 1, 2008

In the 2008 initiative game, the best defense is not just a good offense but an overwhelming one.

Traditionally, when an initiative is filed, the target group prepares a defensive strategy or files a countermeasure. This year, it responds to a single missile by launching a flurry of its own.

The purpose is to take out not only the enemy but all his philosophical and financial allies.

When Jonathan Coors and friends submitted a right-to-work initiative, the Colorado AFL-CIO filed measures that would make it more difficult to fire employees and easier to sue business executives in civil court for misconduct.

Local 7 of the United Food and Commercial Workers quickly jumped in by filing five more anti-business initiatives, including one mandating annual cost-of-living wage increases pegged to the Consumer Price Index.

But that response was mild compared to what the Colorado Trial Lawyers Association had in store for Mark Hillman. The former Senate GOP leader is not their friend and he has filed a ballot issue that would cap their contingency fees: 30 percent on the first $250,000, 25 percent on the next $250,000 and only 10 percent on amounts over $500,000. What's more, they would have to disclose to clients the number of hours they actually worked on the case and their fees could be further reduced if their take exceeded $500 an hour.

The trial lawyers, offended by this attack on their right to make contracts, fired back with nine initiatives of their own.

Ascertaining that Hillman was backed by some Colorado Springs developers, they proposed making "construction professionals" subject to triple damages of up to $750,000 when their work is found defective.

And they would cap real-estate brokers' fees in the same way Hillman would cap theirs: 6 percent on the first $250,000, 3 percent on the next $250,000 and 1 percent over $500,000. And of course no more than $500 per hour.

They would make both civil trials and the "freedom to contract with licensed professionals" (i.e., lawyers) constitutional rights, and they would limit a chief executive's pay to 50 times that of his lowest paid employee.

There is a trio of proposals making it easier to recover damages from physicians, the trial lawyers' favorite target. Finally, they stick their thumb directly in Hillman's eye by proposing that the state of Colorado tax federal farm subsidies at 25 percent "in addition to any other tax."

Hillman is a wheat farmer near Burlington. According to the Environmental Working Group, which tracks these things, he was paid $256,924 in subsidies from 1995 through 2006, or an average of $21,410 a year. But he's a penny-ante subsidy collector compared to other Colorado farmers, ranking No. 2,768 in the 4th Congressional District alone.

The barrage caught the attention of Hillman and his allies. They sat down with the trial lawyers Tuesday afternoon but did not end up trading hostages in the middle of a border bridge.

"A dialog is continuing," said John Sadwith, executive director of the trial lawyers. "We still believe our initiatives are in the best interest of working families and consumers in Colorado."

Hillman downplayed the lawyers' initiatives. "Seems to me they were intended more for intimidation than they were as viable initiatives," he said.

Meanwhile, the trial lawyers will try to get the Colorado Supreme Court to do what the title board hasn't yet done: Find a violation of the single-subject rule in Hillman's initiative. No doubt Hillman will also claim single-subject violations in the lawyers' proposals if a truce isn't reached.

Local 7 President Ernest Duran said Tuesday there have been no negotiations with the right-to-work folks. He claims he can afford to put all five of his measures on the ballot. "My name is on every one and they can't bargain over our initiatives without contacting me."

The voters can only hope that in this three-way war pitting labor and the trial lawyers against the business community, everybody blinks before it's too late.

Peter Blake is a former Rocky Mountain News political columnist. He can be reached at pblake0705@comcast.net.