OLYMPIA, Jan. 4.—Tort reform is the biggest idea this year from the office of Attorney General Rob McKenna, but you won’t find it on the list of bills he’s taking to the Legislature. He’s learned better.

            In a year when Washington state faces its worst budget crisis since the Great Depression, the state could save big bucks – perhaps as much as $40 million a year – by rewriting the rules that allow litigators to tap the state’s deep pockets in civil lawsuits. And it would end a situation that makes Washington one of the most generous states in the country when it comes to legal settlements.

            The trial lawyers are against it, so don’t hold your breath. At the very least, it calls for a different kind of strategy – and it appears that we’ve seen the opening moves in a battle that could erupt during the next couple of months.

            McKenna has been laying the groundwork for a revision of the state’s liability rules this session, but in a quiet way that may improve its chances against the opposition of the state’s powerful trial-lawyer lobby. He’s been talking it up in editorial board meetings, writing op-ed pieces, building support among lawmakers and making the argument to the general public that if ever there was a time to take action, the time is now. But he hasn’t drafted a bill and sought out a sponsor. He doesn’t have a formal proposal.

            “We’re going to provide many options to the Legislature and to budget-writers,” McKenna said Monday.

            In other words, he isn’t giving the trial lawyers a target.

            Washington State’s Deep Pockets

            Tort reform can mean many things, but what McKenna is talking about here isn’t a radical limitation on the right of plaintiffs to sue and recover damages. Attorneys still would be able to go after doctors who don’t do all the tests, the convenience stores that fail to post signs warning pregnant women against drinking beer, and the drive-up fast-food restaurants that fail to advise patrons that hot coffee is something that should not be spilled in one’s lap. What McKenna is going after is one small part of the picture – the lawsuits that force the state to make big payouts even when the state bears only a smidgeon of liability.

            A combination of legal rules mean Washington taxpayers are on the hook in a big way. Since 1961, Washington has waived sovereign immunity – meaning that anyone can sue the state. Joint and several liability rules mean that when all of the responsible parties don’t have the ability to pay, the bill goes to the party with the deep pocket – and that means the state, because it always has the money. And finally the state doesn’t limit the amount or the percentage that it pays.

            It’s a unique combination that means taxpayers face bigger bills here than in other comparably sized states. Washington pays four to 12 times as states like Massachusetts, Arizona and Tennessee. The state’s attorneys win most of the time – some 60 percent of the suits are dismissed. But the big payouts keep getting bigger. Costs have doubled in the last four years. This fiscal year the state is expected to pay out $60 million. Attorneys typically collect about a third of the amount.

            “When I tell other attorney generals about this, they just shake their heads in disbelief, because we are in a situation where we are so exposed,” McKenna said.

            The Cases That Bring Screams

            That’s the view from the 10,000-foot level. But it takes a few examples to make the point.

            There was the motorist who was paralyzed in a rear-end accident on the 405 freeway in Kirkland, while stopped waiting for a green light to enter traffic. The driver of the other vehicle was at fault, as a matter of law. But because the traffic light was in shadow, the state was judged partially responsible. The award? $30 million.

            There was the motorist who was injured when he wrecked his Corvette on a freeway. He caused the accident by speeding. But because of design problems with a guardrail, the state was on the hook for $4.4 million.

            Then there was a motorist who killed a pedestrian – a tragic but not unusual occurrence – except that the motorist happened to be on probation. So the state was judged partially responsible for her behavior. The state was forced to pay $300,000.

            So on and so forth.

            A Cause That Goes Nowhere

            What would make more sense is a policy that limits the state’s liability to the proportion of its fault, McKenna said. One percent of the responsibility would mean the state would have to pay one percent of the bill. Even if the state’s payout was limited to two or three times its responsibility, he says that would be more reasonable than the current legal scheme, and would save taxpayers millions. Exactly how much depends on the approach. For instance, a 2003 proposal would have required legislative approval of settlements exceeding $2 million, and savings were estimated at $40 million every two years.

            But proposals like those always seem to die a mysterious death in the state Legislature, and it doesn’t take much imagination to understand why. The state’s trial attorneys are among the biggest contributors to Democratic candidates. According to the Liability Reform Coalition, political action committees overseen by trial-attorney organizations contributed $1.4 million during the 2008 election cycle, and the figure does not include millions of dollars in direct contributions from attorneys to candidates.

            In fact, if there’s a push in the Legislature on tort reform, it’s usually to increase the state’s liability, not reduce it. Every year it seems there’s a measure that would ultimately cost the state more money. Last year, for example, there was a wrongful-death bill that would have allowed parents to sue the state for the deaths of their adult children, even when they are not financially dependent on them. Cost would have been $10 million a year. It passed the House and died in the Senate, but McKenna expresses wonderment that it even got that far.

            And until now, efforts to reduce the state’s liability have been met with a giant yawn from the Legislature.

            Fifty Million Not Enough to Worry About

            McKenna tried once before, not long after he was first elected. In 2006 he pushed a bill that died after a single hearing. Of all the 50 bills he’s pushed during six years in office, it’s the only one that didn’t have a single Democratic sponsor. It’s not so much that the trial lawyers killed it, he said. They didn’t have to lift a finger. What did it in was disinterest.

“One of the staff members said something I’ll never forget,” he said. “$50 million isn’t that much money.”

Maybe things are a little different now, he said, in a year when the Legislature faces a $5 billion shortfall. And McKenna’s strategy this time out is substantially different. He’s not bringing a formal proposal out into the open. But as lawmakers get serious in coming weeks about whacking state spending he’ll stand ready to make the pitch.

Meanwhile, a couple of lawmakers are stepping forward with more moderate proposals. State Rep. Deb Eddy, D-Kirkland, says she is considering legislation that would limit the state’s liability in cases concerning child protective services and parolees under the supervision of the Department of Corrections. State Rep. Reuven Carlyle, D-Seattle, has introduced a bill that would limit awards of attorney fees in employment discrimination cases.

“I would like to believe, and the governor said this 18 months ago, that in crisis comes opportunity,” Eddy said. “Good policy discussions are difficult in good years, but they should be easier now.”