Daily Archives: September 13, 2004

Those Damn Trial Lawyers!

The assault on John Edwards for the dastardly crime of being a trial lawyer that MoJo predicted is getting geared up. Corporations are pouring money into Republican Party coffers and right-wing advocacy groups, furious that one of ‘Them’ is on the Democratic ticket. Just how mad are they? This mad:

WASHINGTON — The billionaire chairman of an insurance company describes members of the group as “terrorists.” To the head of a national wholesalers group, they seem like “predators.”

The U.S. Chamber of Commerce is co-sponsoring a $10-million advertising campaign to “educate voters about the devastating impact” these people are having on the American way of life.

The target of these attacks is not Al Qaeda or some new pestilence sweeping the nation. It’s trial lawyers.

These days, the people who bring personal injury lawsuits against corporations, insurers and healthcare providers have replaced “union bosses” as the group that corporate America identifies as its key public enemy. And this year, more than ever before, the war of words between corporate leaders and trial lawyers echoes in the battle for the White House.

President Bush has long campaigned against what he calls “frivolous and junk lawsuits,” and he hopes to make “tort reform” a centerpiece of a second term in office. Many business leaders hope he gets a chance.

“We cannot ignore what may prove to be a make-or-break election for legal reform at the national level,” said Thomas J. Donohue, the chamber’s president, shunning the business lobby’s traditional neutrality in presidential races. “When voters go to the polls, they need to know lawsuit abuse destroys jobs, drives doctors out of business and forces companies into bankruptcy.”

Everything Donahue just said is factually untrue–a lie–but it’s the myth we believe thanks to years of the Mighty Wurlitzer hammering away at terms like ‘frivolous lawsuits’ in their capacity as corporate surrogates. Look behind the frivolous reporting, and lawsuits that make it to trial are rarely if ever ‘frivolous’, nor is the amount of damages awarded or paid out ‘extreme’ except in a few high-profile cases.

The Justice Department’s Bureau of Justice Statistics and the National Center for State Courts track civil trials and verdicts in the nation’s 75 largest counties. In April, the bureau reported that in the last decade, the number of cases had gone down, not up.

The number of general civil cases disposed of by trial in the nation’s largest counties declined from 22,451 in 1992 to 11,908 in 2001, it reported — a 47% decline. The plaintiffs won about half the time, and the overall median award was $37,000 in 2001, down from $65,000 in 1992.

These cases included automobile accidents, medical malpractice and product-liability claims. About one-third of the cases involve contract claims, which typically involve one business suing another.

The medical malpractice claims resulted in larger verdicts; 27% won a verdict, but the median amount in 2001 was $431,000, up from $253,000 in 1992.

These data include only trials and verdicts; most civil suits are dismissed or result in settlements, and no figures are available on those outcomes. Nonetheless, government statistics do not show a sharp rise in big-money verdicts.

Those are facts, but they aren’t facts you’re liable to read in the entertainment-oriented corporate press. They make it sound as if filing lawsuits is a license to steal money from hardworking small businesses to load up the pockets of smarmy ambulance-chasers whose only talent is making something out of nothing. The truth is considerably different.

[T]rial lawyers find it laughable to hear stories that they get rich filing “frivolous” lawsuits.

Unlike corporate lawyers, who are paid handsomely by the hour to protect their clients, those who sue on behalf of plaintiffs usually get paid only if they win a verdict or a settlement.

Ken Suggs, the president-elect of the Assn. of Trial Lawyers of America, is a medical malpractice lawyer in Columbia, S.C. To win a verdict, he needs to convince all 12 jurors that a doctor or a hospital violated professional standards of care.

“Juries don’t like to hand down verdicts against doctors,” he said. “You can file a few frivolous cases, but if you do, you will be broke in a short time.”

If you don’t believe that, try this simple experiment: make up a frivolous lawsuit, then walk into any trial lawyer’s office and present it. You’ll be ushered–politely–out of the office after having been told–equally politely–that there isn’t a snowball’s chance in hell of getting a suit like that past the initial court review.

The reason for the attack on trial lawyers is as simple to explain as it is sinister to contemplate.

John O’Quinn, a veteran trial lawyer from Houston, also sees this as a make-or-break election.

“Corporate America is in charge these days. They control the White House, the Congress and the Supreme Court. But so far, they don’t control the right to trial by a jury. That’s the only place where ordinary citizens can go and have their complaints heard,” Quinn said. “Ordinary people can’t hire lobbyists in Washington, but in the courtroom, they get an equal chance to stand up against a corporation.”

This is just the next act in a play designed to consolidate corporate control of American life, the last bastion of consumer protection since the takeover of the entire US govt by corporate stooges like Bush (oil), Cheney(energy), Elaine Chao (investment banking), Condi Rice (oil), Don Evans (oil and gas), Anne Venneman (corporate lobbyist), Rumsfeld (pharmaceuticals), Spencer Abraham, Denny Hastert, Mitch McConnell, and Tom DeLay (everybody)–the list could go on the length of this page, down unto under-secretaries and under-under-secretaries and on to the secretaries’ secretaries (sorry, ‘assistants’).

The problem for the Bushies, though, is that corporate control of govt decision-making is so pervasive, so complete, so in-your-face that it can’t be hidden any more, and there’s a counter-myth developing.

Most Americans — 80% in one recent poll — say the nation has too many lawsuits and too much litigation. Yet when Time magazine conducted a poll on the selection of Edwards as the Democrats’ vice presidential nominee, his career as a trial lawyer helped him with voters. Among those surveyed, 55% said his work as a trial lawyer showed he was “willing to fight for the average person against the big companies.”

Voters in the same poll were more troubled by Vice President Dick Cheney’s background as the chief executive at Halliburton, the Texas oil-services company and defense contractor that has received billions of dollars in contracts to help rebuild Iraq. About 15% said they viewed him more favorably because of his Halliburton connection, while 51% said they viewed him less favorably for this reason.

“People have conflicting views” on lawyers and lawsuits, said David Winston, a Republican pollster who has conducted focus-group discussions on the issue. “They tend to think lawsuits are detrimental to the country. But they want a lawyer when they have a real need for one.”

We aren’t sure what to think at this point, but we’re beginning to lean away from crony-governing, and that’s bad news for the Pubs and worse news for the corporations; a backlash could be coming that will threaten the control they’ve been taking for granted since Junior’s selection by the SCOTUS if democracy survives the ’04 election (not at all clear at this point).

So Edwards presents an opportunity for corporate America to kill two birds with one stone: working the myth may boost Kerry’s negatives and help ensure the selection of their own private sock-puppet as well as help turn public distaste away from the blatant cronyism in the govt they own and operate and back onto their last remaining enemies. Thay have nothing to lose and everything to gain unless (and this is the interesting part) Edwards takes them head on and uses the attacks to tell the American people what trial lawyers actually do–protect them from corporate greed, thievery, incompetence, and wilful, malicious and illegal anti-consumer and ant-labor practices.

We’re already moving in that direction. All Edwards has to do is keep pushing us that way. It’s a hell of an opening they’re giving him. I hope he exploits it to the max.