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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.

Often the first of their families to attend college, plaintiff lawyers are universally scornful of the Ivy League and other East Coast centers of privilege. Joe Jamail, the foul-mouthed Houston lawyer who won the $11 billion Texaco-Pennzoil case, nearly flunked out of law school at the University of Texas and displays a savage animosity towards New York lawyers. John O'Quinn still smarts because Democrats overlooked him in favor of New York über-advocate David Boies in arguing the 2000 Florida recount. "If I'd been representing them, Al Gore would be president right now," he says with finality.

Third, the new trial lawyers have rebelled against the staid old privilege-laden profession of law by openly becoming businessmen. "We're the first generation to approach the law from an entrepreneurial perspective," says Wayne Reaud, who made a billion on the Texas Gulf Coast suing oil companies for asbestos exposure. "It used to be that a lawyer would win one big case and then buy a thousand acres in West Texas and watch his cows grow," says Reaud, whose father was a pipe fitter. "We were the first to put our winnings back into the next case. That made it possible to do a lot of things that hadn't been done before."

Finally, the most successful trial lawyers are generally socially conservative. Jere Beasley, the Alabama attorney who won $675 million from Monsanto for PCB contamination in Anniston, supports Alabama chief justice Roy Moore's efforts to display his Ten Commandments statue in the courthouse. "I think his beliefs are sincere," he says. Wayne Reaud displays a large crucifix on the wall behind his desk in his Beaumont office. Mark Bocci originally wanted to be a priest. Talk to any one of them long enough and they will tell you they feel a religious calling to their profession. "I'm basically a preacher," says O'Quinn, who often strikes an evangelistic tone in front of juries. "I'm like a man preaching about Christ who really believes in Christ. I happen to believe in it myself but that's not the point of our discussion. Go ask Rev. Ed Young, who has a parish of 25,000 here in Houston. He'll tell you I'm doing exactly what God wants me to be doing."

Granted this all smacks of religiosity--the same kind that prompts baseball players to point to the sky after they hit a home run. But it is a religiosity that is utterly American--and particularly prevalent in the states where the Republican party now draws its strength.

SO WHAT IS IT that places the trial lawyers so irrevocably in the Democratic party, and makes them generally regard Republicans as the scum of the earth?

The single dividing issue is the trial lawyers' view of corporate America. To trial lawyers, corporations are the incarnation of evil, sinister megaliths directed by amoral men who use their monstrous power to get away with enormous crimes. This is a rebirth of early 20th-century Populism, but with a twist. The Populists never dragged corporate America before the civil bar, stripping them of billions in the process.

"What kind of country are we living in?" asks John O'Quinn, his voice rising with the emotion that has swayed many a jury. "Was Lincoln just a fool when he said this is a country of, by, and for the people? Or did he say something that we can really believe in, that little children can recite with pride in school? No! This is a country of the corporations, by the corporations, and for the filthy rich corporations. A corporation can be a criminal--an absolute criminal--and nobody can do a damned thing about it!"

Part of this rant is for show. But trial lawyers also encounter corporate America in a way that few other individuals ever do--through its legal departments. Corporate defense attorneys commonly pursue the strategy of wearing down opponents, filing motion after motion, and challenging every single aspect of a case before anything ever gets to trial. They pursue General Patton's tactic of making the enemy spend all his resources before we spend all of ours. (Cynics argue that corporate defense attorneys prefer this strategy because they are being paid by the hour.) Through most of the history of product liability and other tort cases, the plaintiff bar has been completely outgunned by corporate treasuries.

Now that has changed. What the trial lawyer juggernaut has achieved is a kind of parity. They are now able to match corporate giants through long litigation. "The tobacco companies had never lost a case, partly because they were experts at making plaintiffs spend all their money," says Reaud, who was on the Texas team in the 46-state litigation. "We put in $12.5 million from this state when the initial litigation bogged down in Mississippi and Florida. Then there were several more 'capital calls.' I know one attorney who sold his farm in order to stay in the game." The payoff, of course, was worth it. The 80-odd law firms that won the 1998 settlement divided fees of $20 billion--money that is now available for new pursuits.

Indeed, the trial lawyers have themselves become masters at bankrupting opponents--although not necessarily to their advantage, since bankruptcy leaves less money for their fees. More than 60 major companies have been put in Chapter 11 by asbestos litigation. The search for a solvent bystander has now led plaintiff attorneys to target such companies as General Motors, General Electric, and Vivendi, whose involvement in injuries to asbestos workers was completely incidental (GM, for instance, used asbestos brake pads in its cars) but whose deep pockets can be reached through the doctrine of "joint-and-several liability." Silicon breast-implant litigation bankrupted Dow Corning--even though the entire theory of the harm from implants is now recognized as junk science, and the Food and Drug Administration is about to allow implants back on the market.

And so, as these two superpowers--armed with their nuclear arsenals of the law--reach a kind of parity, the question arises: Is any kind of détente possible? Or will the mutually assured destruction of American civil justice lay waste the entire economic landscape?

It is possible to imagine such a détente. To begin, corporate America and its Republican allies must grant diplomatic recognition to the trial bar and admit that injury lawsuits are a permanent and acceptable part of the economic landscape. Critics such as the Manhattan Institute talk of a $200 billion "tort tax"--as if money spent on lawsuits were simply being burned. This is not the case. Damages paid in many legal settlements serve a distinct purpose in buying improvements in health and safety that would not be possible through any other channels.

Like it or not (and conservatives should like it), government regulation is inefficient in improving health and safety. But personal injury lawsuits, as in Mark Bocci's football helmet case, can deftly reach into remote corners of the economy that would never be visited by a government inspector. What's more, large transfers of money are an effective means of inducing these improvements. Although some jury verdicts may seem absurd, large damage awards can be an effective way of getting the attention of corporate giants.

A case in point: Ford designed the Pinto in haste by shrinking an earlier model. Cramped for space, it left the car's gas tank outside the rear frame, exposing it to rear-end collisions. The company recognized the danger but decided not to take any one of several corrective measures, most of which cost no more than $12 per car. An internal memo later justified this decision by estimating the number of wrongful death suits and costing them out at $200,000 per fatality, then the standard established by the National Highway Traffic Safety Administration. When damage awards starting coming in, however, jury verdicts averaged $6 million. The company had grievously miscalculated. When it became clear that litigation costs would far exceed the original estimates, Ford did a massive recall and later withdrew the car from the market.

Says Richard Epstein, author of "Principles for a Free Society: Reconciling Individual Liberty with the Common Good": "Tort law is indispensable to any modern system of safety regulation. When directed toward the uncovering of fraud or incompetence, it works well. The problem comes when, in a search for deep pockets, it misdirects attention to some remote third party who is in a poor position to protect anyone from harm. We should be as skeptical of people who call for wholesale abolition of the tort system as we are of people who want to maintain the status quo."

Like them or not, lawyers are here to stay. On the one hand, it is easy to agree when articulate critics such as Walter Olson and Philip Howard complain that America is "overlawyered" and lament an age when everyone runs to the courthouse to solve grievances. But having a lot of lawyers is as inevitable as having a lot of people with college degrees. And there are compensations in being able to take grievances before a neutral arbitrator. Lawsuits, like war, are policy carried out by other means. Although personal injuries, consumer claims, mass torts, and class actions occupy a growing portion of the docket, the vast majority of time in American courtrooms is still occupied by one corporation suing another. That's what makes America such a great place to do business (unless you prefer to see such disputes settled with payoffs, collusion, or violence).

A détente would also require conceding that America's judiciary is capable of curbing many of the litigation excesses by its own means. The common law moves slowly but surely. In the early 1970s, for example, courts were inundated with civil antitrust cases. Every time the newly active Interstate Commerce Commission charged a company with anticompetitive behavior, private plaintiffs up and down the line began suing for triple damages under the 1914 Clayton Antitrust Act. For a while it appeared the entire economy might drown in private antitrust litigation. Then in 1977 the U.S. Supreme Court decided Illinois Brick v. Illinois, in which it laid down the principle that only parties that bought directly from the offending company could sue under Clayton. Antitrust suits quickly subsided to manageable proportions.

Many of the absurdities that emerge from the jury box are later rectified. The Arizona woman who infamously won $3 million for spilling McDonald's hot coffee in her lap eventually had the verdict reduced to $480,000. (She did spend a week in the hospital and required skin grafts.) When Joe Jamail convinced a hometown jury that Texaco (a New York company) had tortiously interfered when Pennzoil (of Houston) thought it had purchased Getty Oil, the $11 billion verdict (representing Texaco's entire net worth) was eventually whittled down to $3 billion. Newspapers report stories like the prison inmate who sues himself for $5 million and then asks the state to pay since he has no source of income--but never note that filing a lawsuit means nothing. All it reflects, in fact, is the growing awareness among trial lawyers that the bigger the numbers they post on the docket, the better chance the story will land in the papers.

BUT D TENTE requires both combatants to stand down. So looking at the other side of the ledger, what can we ask from the trial lawyers?

The first thing is an admission that there is a vast amount of overreach in the demands of the plaintiff bar. Trial lawyers, for instance, like to get juries to hit defendants with huge punitive damages on the principle that it will "teach them a lesson" and "send them a message." But punishment is a public function and should be subject to the Eighth Amendment's prohibition of "excessive fines." It is irrational that the trial bar should tout the public benefits of its work and then deliver windfall profits to a single plaintiff who is only one of hundreds or thousands of wronged individuals. (Oregon now requires 60 percent of punitive damages go into the state Crime Victims' Compensation Fund, a reform that could easily be extended to other states.)

In fact, the longest-running litigation marathons have exposed the civil justice infrastructure as a vast Ponzi scheme. Millions of people may have been harmed by inhaling asbestos fibers, but there is not enough money in the world to compensate them all at the price being set by jury verdicts. One Texas jury recently awarded $200 million to an oil field worker who feared he had suffered lung damage, even though he had no visible impairments. The system now rewards those who file first with the best lawyers; everyone else is left holding the bag. Legitimate asbestos victims with claims on bankrupt companies are now receiving less than 10 cents on the dollar for their damages.

Second, trial lawyers must admit that among their numbers are those who have turned class actions and mass torts into a racket. In California, as Walter Olson recently reported, attorneys sent letters to thousands of businesses citing their recent violations of the state's draconic consumer-protection laws and demanding payment for not suing. It is hard to imagine a plainer example of "racketeering." The New York State Trial Lawyers Association has created a nonprofit Big Apple Pothole and Sidewalk Protection Committee, which hires students to inspect New York City sidewalks and mark up maps with thousands of squiggles that supposedly represent pavement damage. These maps are then used as proof of prior notice in slip-and-fall cases that currently cost New York City $60 million a year.

Asbestos claims now number 90,000 a year and are still climbing--even though the epidemic of the lung cancer mesothelioma, the principal disease from asbestos exposure, has been declining since 1991. This is because tort firms now run screening clinics at factories, often rewarding doctors for each positive diagnosis. This blatant recruitment of plaintiffs has turned many of the pioneering asbestos attorneys into opponents of the current campaign.

"We had a 79-year-old former refinery worker come into our offices two years ago asking us to represent him," says Wayne Reaud of Reaud, Morgan & Quinn. "We sent him to our doctor, who told us the man didn't have anything wrong with him. We told him this, but the guy kept insisting he was sick. 'I know I got it, I know I got it,' he said. What we didn't realize is that he had been recruited by one of these advertising firms in Dallas, and they had told him he had asbestos damage."

On the morning of June 13, 2002, the 79-year-old showed up at the firm's offices in Beaumont, Texas, with a shotgun concealed in a cardboard box and murdered Reaud's partner, 47-year-old Chris Quinn, a former Baylor football player and father of five children. Quinn's picture--coaching his son's soccer team--still hangs prominently in the hallway. "These advertising firms that file fraudulent asbestos cases don't have a bigger enemy in the world than me," says Reaud grimly. (The 79-year-old, Richard Joseph Gerzine, was convicted of murder by a Beaumont jury on October 27, 2003.)

Critics on both sides agree that while the American civil justice system is very fair at settling disputes between contending parties, it takes little note of the effect of courtroom decisions on interested third parties--i.e., society at large.

"American justice is conceived as a sporting contest between rival contestants," says Deborah Rhode, director of the Keck Center on Legal Ethics and the Legal Profession at Stanford Law School. "The question is how far lawyers should go in representing their clients' interest. Values such as good faith, honesty, and fair dealing that are essential for efficient markets and regulatory systems rely on shared restraint. Over the long run, the single-minded pursuit of clients' self-interest can be self-defeating, not only for clients but for society as a whole."

Author Philip Howard, who has founded a nonprofit called Common Good to reform "America's lawsuit culture," cites a recent decision in the House of Lords--Britain's equivalent of our Supreme Court--where the judges dismissed the claim of a young man who had broken his neck diving into a lake at a park where 160,000 visitors swim each year. Noting that the only way to achieve safety would be to prohibit swimming altogether, the Lords asked, "Does the law require all trees to be cut down because some youths may climb them and fall?"

"This is the missing link in American justice," says Howard. "Judges have lost sight of the idea that lawsuits concern not only the parties in the dispute but everyone in society."

Trial attorneys are now like the capitalist Robber Barons who sparked the reforms of the Progressive Era. Just as the Robber Barons built America into an industrial giant, so the trial lawyers have made America into a healthier, safer, fairer place to live. That many of them have become billionaires in the process may prove only that they were the first to recognize the need for action. Like their industrial predecessors, however, the new Robber Barons may require public restraint. As Theodore Roosevelt knew, the outsized success of any business endeavor presents problems to the rest of society.

If they are to play TR, Republicans will need to begin by granting that Trial Lawyers, Inc., has a critical role to play in promoting health and safety and policing corporate America. Trial lawyers, for their part, will have to begin by recognizing that corporate America is not indestructible and that their litigious successes could end up doing great harm to the nation.

William Tucker is a fellow with the Discovery Institute, which supported this investigation.