Civil Justice Reform in Georgia: Nino Marchese & Mark Behrens on ALEC TV
These bills touch on a number of different issues, many of which ALEC model policies have covered over the years.
Georgia’s legislature, under Governor Brian Kemp’s leadership, has unveiled a bold package of tort and civil litigation reforms aimed at addressing what many see as a growing crisis of lawsuit abuse. Mark Behrens, a longtime advisor to the American Legislative Exchange Council (ALEC) and former chair of its Civil Justice Task Force, joined Nino Marchese on ALEC TV to discuss the implications of Senate Bills 68 and 69. Behrens, a staunch supporter of the reforms, sees them as a critical step toward balancing Georgia’s legal system while boosting its economic prospects.
“I strongly support what Governor Kemp has put together in his package, and we really appreciate his leadership and those in the legislature that have worked with him to craft this comprehensive civil justice reform,” said Behrens.
“It’s very important for Georgia, both from a jobs perspective, to continue Georgia’s work to be one of the top states in the country for business, and also to help ordinary consumers with homeowner insurance rates, which are an auto insurance rates, which are very high in Georgia, in part because of their lawsuit abuse system.”
A centerpiece of the legislation is its focus on third-party litigation financing (TPLF), a practice Behrens described as a game-changer in the civil justice landscape.
“What we’ve seen over the last decade is that billions of dollars are pouring in to invest in lawsuits in the United States,” he explained. “This money is coming in from large hedge funds, but also from foreign country wealth funds, places like Saudi Arabia or even China are pouring billions of dollars into funding lawsuits in the United States and also into funding the ads that go to create these lawsuits.”
He cited Professor Maya Steinitz’s observation on 60 Minutes that TPLF is “fundamentally changing civil justice in the United States,” with funders influencing case selection, litigation strategies, and settlement decisions—all shrouded in secrecy.
Likening TPLF to a high-stakes gamble with no downside for plaintiffs’ firms, Behrens described the financial dynamic of third-party litigation funding (TPLF), a practice where outside investors provide financial support to law firms or plaintiffs to pursue lawsuits in exchange for a share of any winnings.
Illustrating the funders’ strategy, he said, “If you were to go to a roulette wheel with your last $1,000 you’re probably not going to bet that on a number, because you can’t afford to lose your own money. But now, if I were to give you $1,000 chip and say, bet this the way you want, and if you win, we’ll split the proceeds. And if you lose, you don’t have to pay me back. You’re going to make the bet right, of course, because you only see upside in here, no cost.”
The legislation’s response—requiring registration and disclosure of TPLF arrangements—earned Behrens’ approval, though he sees room for more.
“Registration is important. The state needs to know who’s doing business there,” he noted. “But also, another core component of the legislation is to require disclosure at a party’s request.” This transparency, he argued, is vital to ensure courts and defendants know who’s behind a case, preventing funders from vetoing reasonable settlements or compromising attorneys’ ethical duties.
Looking ahead, Behrens predicted a transformative impact if the bills pass. “I think if the bill passes in the form it’s in now that it’s going to have a very significant factor in improving the litigation climate in Georgia,” he said. Citing Georgia’s rank as number four on the American Tort Reform Association’s “judicial hell holes” list, he added, “Georgia will not be number four on the hell holes list anymore. It may not even be on the list anymore, because this is really strong, comprehensive legislation.” For Behrens, the reforms promise lower insurance costs for consumers and a signal to employers that “Georgia is open for business.”
With his decades of expertise, Behrens views Georgia’s efforts as a potential model for the Southeast and beyond, curbing lawsuit abuse while fostering economic growth.