The Magazine

In Defense (sort of) of Trial Lawyers

From the December 15, 2003 issue: Their excuses are well known, their virtues less so.

Dec 15, 2003, Vol. 9, No. 14 • By WILLIAM TUCKER
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MARK BOCCI is a personal injury lawyer in Lake Oswego, Oregon. In the 1980s, he took the case of a Filipino-American high school student who had suffered a grievous injury playing football. Kneed in the head by an all-state fullback, "Richard" suffered headaches and dizziness for two days, then collapsed with massive brain injuries. The doctor who saved his life said, "I'm not sure I did him a favor." Richard had very few motor skills left and required 24-hour care.

Bocci decided to pursue a product liability case against the manufacturer of the helmet. This was a risky approach, since all football helmets go through an impact- testing process before being marketed. The helmet in question had passed the test. With such a sanction at hand, manufacturers are usually able to defend themselves.

Sifting through 20,000 pages of discovery documents, Bocci found nothing incriminating. After an exhaustive search, however, he did uncover two other deaths and several cases of brain injury involving the same helmet. It turned out the manufacturer had quietly settled these cases to avoid publicity. The company also offered to settle with Richard's family now.

But Bocci's concern had been aroused. Pushing further, he finally turned up the former CEO of a rival manufacturer who had a story to tell. The CEO explained that the helmet in question was fitted with a "front in-sizer" to adjust for head size. This accessory came in two different sizes. One had passed the impact tests but the other--a one-inch in-sizer--had failed. Richard had been wearing a one-inch sizer.

By the time the case came to trial, Bocci and his partner, Jim Pippin, had invested six years and $350,000 of their own money in the case. "My wife and I had just bought our dream house," says Bocci. "Then we realized we couldn't keep it. One night we sat down with our two teenage daughters at the dinner table and told them we had a choice--either we could stay where we lived or sell the house for Richard's sake. I'll be eternally proud of them that they didn't hesitate a moment. We moved."

Three years later, an appeals court finally approved the $11.2 million verdict Bocci won before a jury. The company immediately withdrew the helmet from the market. "We believe we prevented numerous other injuries," says Bocci, who this year was inducted into the Inner Circle of Advocates, the exclusive society of the nation's top 100 trial lawyers. "Richard is making tremendous progress," he adds. "He's got a 300-word vocabulary and is completely ambulatory. Full-time therapy has been a tremendous help."

TRIAL LAWYERS over the last couple of decades have become the mainstay of the Democratic party and the nemesis of the Republicans. A few years ago, Senator Howell Heflin, the Alabama Democrat, announced memorably that "Jews, labor unions, and trial lawyers" were the financial pillars of his party. Trial lawyers certainly have the wherewithal to make major donations. The Manhattan Institute has just issued a condemnation of the plaintiff bar titled "Trial Lawyers, Inc." The profession rakes in "almost $40 billion per year in revenues--50 percent more than Microsoft or Intel and twice those of Coca-Cola," trumpets the study. "[It] might well be the most profitable business in the world."

The ideological lines of demarcation are only becoming more entrenched. President Bush's attempt to curb medical malpractice and class action lawsuits have just failed to muster the 60 votes necessary for cloture in the Senate. Congress's effort to put a limit on asbestos damages also collapsed. With Senator John Edwards running a dark-horse campaign for president almost completely financed by his fellow trial lawyers, the plaintiffs' bar is gearing for Armageddon. "If Bush gets elected with big majorities in Congress," Edwards told the Inner Circle last summer, "you'll get tort reform like you've never seen before."

Yet behind this make-or-break political posturing, there are odd cultural crosscurrents. Although they have obvious Populist roots, trial lawyers in many ways fit the contemporary Republican ideal.

First, trial lawyers are self-made men (and they are nearly all men). With eerie predictability, they rise from humble beginnings and blue-collar backgrounds in the central portions of the country. Philip Corboy, the Chicago-based dean of personal injury lawyers, is the son of a Chicago police officer. John O'Quinn, the Houston billionaire who pioneered breast-implant litigation, is the son of an auto mechanic and himself trained at GM's Mister Goodwrench school before deciding to attend college. Ron Motley, the South Carolina lawyer who directed the 1998 tobacco litigation, is the son of a gas station owner. Mark Bocci's parents owned a grocery store. John Edwards's father--as he repeats constantly in his campaign--worked in a South Carolina cotton mill.