Trial lawyers say new law to increase caps in personal injury cases will give access to justice

Until a few weeks ago, Colorado trial lawyers were gearing up for a fierce election fight, having put up two ballot initiatives that would have increased the caps for pain and suffering sustained by their clients in personal injury cases. But just before the state legislative session ended, the lawyers reached a deal with doctors and business owners that will see the caps increase for the first time in decades. The doctors and businesspeople had put up their own ballot measures, which would have reduced contingency fees lawyers could have charged their clients if they won in court. All four initiatives have now been withdrawn and replaced by a compromise law, brokered by Governor Jared Polis, which increases the cap on damages for noneconomic loss or injury from $250,000 to $1.5 million, and starting January 1, 2028. Our blogger, Simon Crittle, spoke with Colorado Trial Lawyers Association (CTLA) president, Kari Jones Dulin, about the deal.

What does this mean for attorneys, their clients, and people that work with attorneys like private investigators?

It’s really about getting better access to justice for our clients. We take on cases and often times we are able to get the results our clients deserve. Or they aren’t able to get fully compensated for their injuries and damages because of caps. So an increase in caps helps to ensure that our clients are getting fully compensated. Also, caps, especially on medical malpractice cases, for a very long have prevented lawyers from actually being able to take on cases, because medical malpractice cases are incredibly expensive to prosecute. Often times when you have a $300,000 cap on non-economic damages for a catastrophic injury or a death, the lawyers in this state will tell their clients “I am going to do you a disservice if I advise you to bring this case because the cap is so low.” So this legislation opens the door for clients to bring a case they otherwise wouldn’t have because it just wouldn’t have made sense financially.

This obviously means more money for attorneys and the people they work with, especially if you have a contingency fee arrangement, right?

Sure. There is no way to answer that other than saying “yes”. But with all due respect, I think people need to be educated about what contingent fee work really means. Contingent fees see lawyers take a risk on anybody who walks through their door. What we do is, we meet people for an hour and we hear their story. And based on what we hear we are willing to take all the risk. And not only the risk that we are going to work and maybe never get a recovery, but we are willing to invest our own money. Every single client we take on we immediately start to invest our own money to prosecute cases. Also, juries are incredibly smart and they aren’t gonna give your client a dime unless they’ve earned it. Sure, we make more money but only when our clients are so badly injured that it warrants a higher payout. And not every case from a damages perspective warrants meeting the increased cap. Not every case is a catastrophic injury. Not every case is a wrongful death. And lawyers take on small cases, big cases, it doesn’t matter.

This has been coming for a long time, right? The caps were in place at the same level for decades, right? So is this good news?

It is good news. Absolutely. We had every intention of going to the ballot in November. But we were approached by our opposition, and we were willing in good faith to come to the table to see if maybe there was something for our members to work out verses spending the money to go to the ballot. That’s ultimately what happened. We were able to come to the table. But it’s a compromise, right. When you come to an agreement like this it’s a compromise meaning not everybody gets everything they want but you get enough that you feel like you’ve made generational change. And that’s exactly how we feel about it.

Given those caps were in place for some time, were they hurting lawyers and their clients, and denying people access to justice?

Have they hurt Coloradans? 100 percent. The reality is, you take on a client and let’s say you go all the way to a jury trial. Say you’ve got a client who lost a limb in a car crash. And you go to trial and the jury awards your client $5 million in non-economic damages for the pain and suffering they’ve sustained from losing a limb. And what the jury doesn’t know is that post-trial the judge reduces that verdict. The current cap for non-economic damages for a car crush is approximately $730,000. So, if I took that case to trial and the jury awards them $5 million, post-trial the judge is going to reduce that to $730,000. And the jury has no idea. That’s what been what’s happening in this state for a long time. Juries are in the best position to determine how much a person should receive because they have sat in that courtroom and listened to the evidence. And it’s not fair that their thoughtful work is taken away from them because of caps.

You guys brought Initiatives 149 and 150. Were you prepared to go all the way. It’s very expensive to bring a ballot initiative, right?

We were. Very expensive. We had a phased fundraising program. But we were absolutely prepared to go to the ballot. Absolutely prepared. We knew that it would be very expensive. But we also have a very passionate trial lawyers association and we had been putting up with these caps for a very long time. That was our intention. But we were approached by our opposition. They came to us. We engaged in some very meaningful negotiations, and we were able to come to a resolution that we think makes generational change for Coloradans.

Negotiations went right down to the wire before the end of the legislative session, right?

It was like minute-to-minute. Our lobbyist told us it takes about three days push forward a bill. So we knew we were running up against the clock to not only negotiate a deal, but then you have to put pen to paper, right. So we were furiously working to get this done before the session ended to get something in writing that everybody was agreeable to. So when I says it was minute-to-minute, it really was.

And with Initiatives 170 and 171, they would have reduced contingency fees from 33 percent to 25 percent, which would have obviously been bad for you guys, right?

Certainly, that is something that wouldn’t have been good for trial lawyers. But at the same time we knew that it was something that was filed purely as a counter measure and we didn’t see a lot of effort behind it. With our effort, with our ballot measures, we had a whole plan in place. We were out getting signatures. We didn’t see that happening with them. They weren’t serious from our vantage point. It was a concern, but they weren’t putting the work in. We knew that.

Their argument all along was that raising the caps would have made Colorado uncompetitive because it would have meant that doctors and other businesses would have had to carry very expensive liability insurance and might leave the state. Did you ever buy that?

I never bought it. Here’s why. About half the states don’t have caps. If you look at the data, there is no correlation between not having caps and increased insurance rates. Furthermore, in every state where they don’t have caps they have plenty of doctors. Doctors aren’t running away from those states. So all of that is propaganda, from our perspective.

Do you think you’ll have to revisit this again?

Maybe. We never say never. The point of the CTLA is to pursue laws that are the most beneficial for injured Coloradans. We are consumer friendly. We are all about supporting the consumers. So never say never. We are always thinking about how we can better this state for our clients. So no, I would never say never to that questions.

In a related matter, the Colorado Supreme Court just found against Vail Resorts in a personal injury case involving a person who fell from a chairlift. This pushes back on a very long-standing precedent that said ski companies couldn’t be found liable for injuries that occurred at their resorts. The court found they can now be found liable if the resort is not in compliance with the law. Is this a good thing? Will this provide people with access to justice in the same way, as you say, increasing caps does?

Absolutely. For sure. From a trial lawyer and plaintiff perspective, this is a great ruling. I will acknowledge that the ski industry is very important to this state. This is not about taking that away. A lot of people within the state love to ski. A lot of people come visit to ski. And we fully recognize this is of utmost importance. However, when people are injured in that context through no fault of their own and there are systems failures and these things could have been prevented, we believe that people should be allowed to get compensated for their injuries.