THE GROWING POWER OF TRIAL LAWYERS
12:00 AM, Sep 23, 1996 • By CAROLYN LOCHHEAD
Everybody knows there is money to be made in lawsuits these days -- suits against breast implants, asbestos, Norplant, and the like. Fabulous riches to be made, amounting to billions of dollars for hard-working trial lawyers. So should it come as any surprise that this money has entered the bloodstream of politics?
It turns out there's more of it floating around than anyone could have imagined. The astonishing extent of political giving by trial lawyers has been brought to light for the first time in a report by the non-profit Contributions Watch. Trial lawyers are bankrolling politicians at a level unmatched by any profession: $ 100.4 million in combined state and federal giving from 1990 through 1995, heavily concentrated among a tiny core of extraordinarily rich plaintiffs' attorneys. The amount of money involved, as well as the results that money has bought, tell us something new, fascinating, and troubling. Trial lawyers have become the most powerful professional special-interest group in American politics.
Victories in tort cases are "generating literally billions of dollars in fees for lawyers to the point where they now effectively control certain political processes," says Lester Brickman, a professor at the Benjamin N. Cardozo School of Law in New York. "Money talks and big money talks loudest. If you have enough money -- and the litigation generates enough money -- it's going to be able to buy the political process. With enough money, you can buy a veto from the president of the United States." In the past year, President Clinton has twice vetoed legislation aimed at tort reform -- and one of the vetoes came just days after William Lerach, the most successful securities tort lawyer in the country, attended a White House dinner.
But the real evidence of trial-lawyer political power comes at the state level. From Florida to Arizona, state attorneys general are actually deputizing trial lawyers to litigate tort cases for them. These are cases for which the trial lawyers can earn colossal contingency fees -- cases in which the lawyers receive no money up front but a large cut of any settlement or jury award. The suits primarily involve tobacco companies and the health-care costs incurred by smokers. But they have moved beyond tobacco to asbestos and environmental litigation. Brickman says "the activities of the attorney general of Mississippi, to name just one," are heavily influenced by the state's trial-lawyer bar. And in a blatant conflict of interest, a number of state prosecutors are handing out these multibillion-dollar contracts -- without competitive bidding -- to the same lawyers who donate money to their campaigns.
In Texas, Louisiana, and other states where judges are elected, not appointed, trial lawyers make major campaign contributions to the men and women who then preside over cases argued by the very same trial lawyers.
What makes the Contributions Watch study such a breakthrough is its focus on state campaigns, where trial lawyers actually make their biggest political investments. It is fiendishly difficult to figure out how much money is spent at the state level. Federal Election Commission records are computerized and centralized; state campaign records often consist of boxes of paper filed away in state capitals.
The report also takes the first in-depth look at individual donations that usually escape notice because they are so hard to identify. Contributions Watch matched thousands of individual contributions with a directory of the American Trial Lawyers Association (ATLA), then added the names of well-known nonATLA litigators like Lerach. Donations by relatives were also included if a match could be verified. Warren Miller, executive director of Contributions Watch and a former analyst at the Federal Elections Commission, calls the numbers "very conservative," and indeed they are often smaller than tallies done by local newspapers.
The numbers show stunning largesse over the past six years. In 11 states where data were compiled from January 1990 to December 1995, individual trial lawyers gave $ 61.3 million at the state and local levels, swamping the $ 39. 1 million they gave to national campaigns.
Donations to political-action committees, which are easy to find, make up just a fraction of the money. Of the $ 9.7 million trial lawyers contributed in Illinois, for example, just $ 1.9 million came through a PAC; of the $ 5.4 million in Arizona, just $ 88,000 did. The pattern is the same in state after state.