New trial lawyers’ president says education, legislation will continue to be the focus

Robert W. Johnson has been a trial lawyer in Indiana for more than 30 years, and this spring he became president of the Indiana Trial Lawyers Association.

A partner at the Indianapolis law firm of Johnson Jensen, he has spent his recent years with the association working with the group’s lobbying team on legal matters brought before the Indiana General Assembly.

The Indiana Lawyer asked Johnson to discuss what he plans to focus on as association president over the coming year and how he sees the legal profession changing over the next decade.

Here’s what he had to say.

Tell me about your experiences with the Indiana Trial Lawyers Association and what you think it has done for your career.

I started with ITLA in 1993, the year that I was admitted (to the bar). I was working at Vaughan and Vaughan in Lafayette. Charlie Vaughan Sr. was one of the founding fathers of ITLA in a way, along with Howard Young and Don Ward and several others. I think they started in ‘56. But I’ve been in it 30 years because he asked me to join. … What I’ve learned in the educational seminars and everything that we put on twice a year has been invaluable. I think the people that I’ve met has been invaluable. I have contacts throughout the entire state, people that I can call and ask questions. It’s really one of the most successful groups or groups of people that I’ve been involved in. Everyone seems to be on the same page. And all of our oars are, you know, rowing in the same direction, most of the time.

What are you hoping to accomplish in your year as president?

I’ve been on the executive committee for 8 or 9 years, and my job there has been governmental affairs the entire time. I have worked closely with our executive director and legislative staff … to monitor the Legislature, finding bills that we need to kill or help. Kill, because every year there are a lot of what I would call “Hail Mary” bills for immunity, limiting damages, all these things that are for special interests, and we’re constantly over there every year killing these things. That’s been my main job, and I continue to have that be our focus.

ITLA, when it started in ‘56, its purpose was really two pronged: educational and legislative. And I think the legislative was the original reason because some lawyers in the state in the ‘50s thought that $10,000 cap on wrongful death was wrong. And they got that eliminated. That’s kind of like where it started, just with education and legislative advocacy. So, I want to make sure that legislatively we’re protected, and we play some offense But it’s difficult to do over there.

Educationally, I want to make sure that, and I think we do this year in and year out, that we have top-notch seminars with national speakers, and then our second seminar in the spring, which we just finished, it’s kind of like a TED Talk format. We’ve been doing this for 40 years, where members give a 15-minute presentation on an issue that they feel very uh comfortable with, that they’ve dealt with and how other members could use it. And the way that I think our members share information, it’s exciting because there’s not a lot of jealousy. I can see everyone wants to work together. And we want to make sure our members get the information they need as well to keep up with all the technology and changes that are occurring every year.

How has Republican domination of the Indiana General Assembly over the past 20 or 25 years affected trial lawyers?

Well, every year there we can expect immunity bills. Could be veterinarians or nail technicians, some special interest (who says) we want immunity for what we do in our job, and so we can quickly get rid of those. … What I have found over the last 25 years is it hasn’t been really a party issue. I think one would assume that if we’ve been dominated by Republicans, conventional wisdom would say they’re eventually going to try and limit people’s access to courts. We haven’t seen that. Well, we’ve seen attempts, but we have not seen the Legislature do a major change since probably ‘95.

We are not party affiliated at ITLA. We have a ton of members who are Republicans and a ton who are Democrats and some I don’t even know what they are. But to us, it’s the issue and the issue alone. And so we do not play party politics over there. We have contacts on both sides of the aisle, and we have maintained those relationships over the years. …

We have found, I guess, success over there because I believe ITLA has the respect of the Legislature in general. I think they look at us as someone that will talk about the issue. We’ll listen. We’re open-minded, you know. Our goal is to keep access to courts open for all citizens. Everyone deserves their day in court, because that is the bottom line. Even if you might not think they have a case, they deserve to have that day in court.

Some of the principles that we stand for, which is fair compensation after some sort of incident where someone is harmed and has damages, that’s something that can appeal to both sides of politics. There’s no R or D that is put on that because that can happen to anyone at any time. And I think most people realize that over at the Statehouse. But, you know, as much as I might be sounding optimistic, I mean we’re very closely monitoring what goes on over there.

But there have been some successful bills that have limited certain damages in certain situations. What about those things concern you?

I’ll put it this way. Many of our neighboring states in the Midwest have found the caps on damages to be unconstitutional. And right now we have (caps) in the Medical Malpractice Act and with adult wrongful death. The adult wrongful death (law) hasn’t been changed since 1999.

The medical malpractice, they put in higher caps to adjust with the cost of living. I think raising the caps was an attempt for them to show, hey, we’re trying to keep this commensurate with the cost of living. But they haven’t done anything for a few years and at one point there could be a case that comes up on the (state) supreme court that says all the stuff is unconstitutional.

So to answer your question, caps on damages really do grab our attention because I think they are unconstitutional. Let a jury decide. The jury is in essence is a free market. They shouldn’t have any limits on what they decide is fair and, so yeah, we’re totally against limits, caps, and we will fight those tooth and nail.

So refresh my memory, what are the limits for medical malpractice at this juncture?

For medical malpractice, it’s $1.8 million right now. What happened was it used to be $1.25 million and then they raised it in 2017 and then 2019.

A lot of times you hear trial lawyers being criticized in political messaging for wanting limitless damages and driving up the cost of business. How does the association work to combat some of those negative perceptions?

We don’t have necessarily a plan or a decisive effort to combat that. As an organization, we interface with the Legislature mostly. … The last few years there’s been a lot of trucking legislation proposed that would cap damages, bifurcate trials and really give a lot of advantages to the trucking industry, and those have been killed two years in a row. … Instead of going over there and just saying this is wrong, we will offer, hey, we’ve got a witness, a story of a constituent that can come in and say this is why caps on damages would be bad in a trucking case. You know, like produce real witnesses, not just a lobbyist’s word. … If you produce someone who’s actually been through this, they’ll listen to them more than anyone. So I think the way we try to combat that is by presenting facts and persuasive policy arguments.

How are trial lawyers responding to new technology, especially artificial intelligence. How is it being used? How is it being avoided?

We have seen everything from the most ridiculous, you know, where someone just had ChatGPT write their briefs and there were a lot of what they call hallucinations in the brief, mixing of case citations. We talked about it a lot at our last two seminars. Everyone is seeing what it can do. I think there are a lot of initial questions that lawyers are bringing up, like are we risking breaching attorney-client privilege or confidentiality because we’re giving information to a third party and do you need to put this in your fee agreement or your letter of representation. … It’s kind of like the wild, wild west right now, and eventually I think it’ll settle down. … It kind of feels like social media in the beginning. Not many people really know what it could do or how it should be used, but they sure do like it.

How do you think technology and other factors will change the practice of law over the next decade?

At least in the civil litigation trial work, things have changed, and they seem to be going in this direction where there’s less interaction between lawyers. I used to make phone calls and talk to lawyers every day. I see that less and less. Most of it’s by email. So I guess the way I see it going is not a way that I like, which is less and less interaction between lawyers, courts and judges. I think some of the in-house insurance lawyers are not allowed to take depositions of people in person. They all are by Zoom now. I used to know the face of the lawyer across from me and now there are a lot of strangers …

What bothers me about it is I could update my client (and say) hey I’ve been talking to the attorney and I feel pretty good about this. There was something I could share with my client to update them that things were going in the right direction. Now since it’s a little bit less personal, we might not learn what they want to do on the case until everything’s done as far as depositions and discovery and then you’re at mediation and you learn that they got a totally different view than you do. And had you been talking the whole time, maybe that would have not been such a diverging of positions. It just makes it a little bit more difficult to let our clients know exactly where we think the case is going.•