March-April 2003
By Walter Olson
Were you to go looking for the nation's sharpest legal talents to spearhead an assault on a target as formidable as the tobacco industry, it might seem unlikely that Hugh Rodham's resume would wind up anywhere near the top of your stack. The Florida attorney had spent much of his career as an assistant public defender, and his background was notably lacking in mass tort or product-liability experience. But when the so-called Castano Group of trial lawyers hired him, it could not but be aware that Rodham brought with him a different qualification: he was the brother-in-law of President Bill Clinton. The Castano lawyers were vying with the Dickie Scruggs/Mike Moore constellation of lawyers for the recognized lead role in the fight against the industry, and one Castano chieftain, mindful of Scruggs's family relationship with then-Senate Majority Leader Trent Lott, had reportedly vowed that he was not going to let himself get "out-brother-in-lawed."
Rodham proceeded to use the occasion of a Thanksgiving dinner at the White House to approach the president directly on the tobacco matter, upon which Clinton assigned his trusted right-hand man Bruce Lindsey to the task of using White House clout to bring settlement talks to a successful conclusion. Although Rodham attended some of the marathon negotiating sessions that preceded a settlement, he can hardly be said to have played a commanding role: according to the Washington Post, he spent "the last hours of the talks in a corner reading" a paperback thriller. Later, toward the end of Clinton's presidency, it was revealed that the chief executive had been prevailed upon to cut a videotape-a canned commercial, really-on behalf of the Castano lawyers' request for fees that could reach $3.4 billion. "The way I understand it, they pushed him into a bedroom during a fundraiser, gave him a script, and shot the tape," said a local official who had been involved in the president's visit.
A commercial endorsement by a sitting president was something virtually unprecedented in the annals of American government-no one could remember any previous president even floating a trial balloon for such an idea. And although it would have been bad enough form for a chief executive to have endorsed, say, his brother-in-law's company's brand of chewing gum, this was a lot worse: chewing gum is a matter of private taste, but overseeing the impartial enforcement of the laws is part of a president's job description. But there seemed no end to the favors the Clinton administration had been willing to do for the tobacco bar. The Justice Department had launched a splashily announced criminal investigation of the tobacco industry that went nowhere but generated considerable publicity to the lawyers' advantage. And the Clinton White House, overruling career Justice Department staffers, ordered that a federal medical-cost-recoupment suit be filed against the tobacco industry, a step for which the Castano Group and the Scruggs team had both been lobbying for years. Later, when Rodham turned up assisting a group of the Castano lawyers in their suits against the gun industry, he seemed to think it was his legal acumen that had kept him in such demand: "It was totally unforeseen, when we joined," he told Time, "that there would be any connection with politics."
For twenty years, there has been talk of action in Washington to reform the excesses of the liability system and rein in the power of trial lawyers. And over those twenty years, little if any reform of any real significance has made it to enactment at the federal level. Product-liability reform, though passing the House of Representatives, has stalled in the Senate. Controls on tobacco fees went down to narrow defeat. Shareholder-suit reform, after an enormous battle, passed over a veto from President Clinton, but accomplished only marginal alterations. There have also been a series of isolated reforms, mostly consisting of minor tinkering to resolve some crisis affecting a narrowly defined, sympathetic constituency such as community volunteers, makers of light aircraft, or suppliers of childhood vaccines-situations where the consequences of open-ended liability had proved so damaging that trial lawyers were better off yielding a bit of ground than continuing to face an angry public. For the most part, however, the litigation lobby rightly boasts of its record, year in and year out, under Republicans and Democrats alike, of turning back any threats to its prosperity. Fortune, which publishes periodic rankings of lobby clout, has ranked trial lawyers among the top half-dozen most powerful lobbies in Washington, ahead of the AFL- CIO, the Chamber of Commerce, government employees, bankers, doctors, the real estate community, organized teachers, and the entertainment industry.
At the state level, the record of litigation reform is only a little more encouraging. In most big states, trial lawyers have either blocked the enactment of reforms or have managed to get reform-minded statutes later struck down by lawyer-friendly courts. Before curbs on litigation can reach the floor in a state legislature, they commonly must run a gauntlet of judiciary committees on which trial lawyers and their allies are heavily represented. In California, for example, it was state senator Bill Lockyer, longtime guardian of trial lawyer interests and himself in plaintiffs' practice, who for many years chaired the judiciary committee of the upper house in Sacramento, before going on to win the state's attorney generalship in a well-funded campaign. In New York, any proposed curbs must get past such committed opponents as Assembly Judiciary Committee chair Helene Weinstein, of counsel to her family's personal-injury firm; assembly speaker Sheldon Silver, who practices with one of the state's most prominent tort firms; and, over in the state senate, committee chair James Lack, who maintains close relations with the trial bar, as do GOP lawmakers in New Jersey and some other northeastern states.
In Maryland, one opponent describes the power of attorney Peter Angelos, who owns the Baltimore Orioles as well as dominating asbestos and tobacco litigation in the state, as "absolutely magical" and "amazing." Annapolis lawmakers have long made it an annual habit to pass "Angelos bills," which he sometimes drafts personally, the effect of which is variously to increase retroactively the level of damages he can obtain in pending cases, expand the range of defendants he is entitled to sue, or overturn some court decision that has gone against him. Angelos sports a roster of ten registered lobbyists, and a number of highly placed members of the state legislature happen to earn their daily livings as lawyers at his firm. His allies, however, deny that they are engaged in private-interest legislation when they pass Angelos's bills, given that their patron counts as a pillar of the Maryland economy in his own right, like the bay crabbery. "Peter Angelos in and of himself is a major economic interest in the state," explains House Majority Leader John Hurson.
The $540,950 Firm
What accounts for the disproportionate influence of plaintiffs' trial lawyers, who constitute only a smallish fraction of all lawyers? One reason is the contingency fee, which, in effect, makes them part owners of the volume of claims moving through the system and gives them a far sharper and more personal interest in courtroom trends than, say, divorce or real estate lawyers are likely to have. Indeed, the financial livelihood of lawyers who sue for a living depends more or less entirely on access to governmental processes, which may be why they tend to take their lobbying so much more seriously than do, say, dentists or department store executives. They can also focus their interest with great intensity on a relatively short agenda to pursue with politicians, while farmers, doctors, and manufacturers find their interests affected by a lengthier and more diffuse list of issues. And the pursuit of litigation is in many ways the perfect preparation for involvement in a hotly contested political campaign: it's a zero-if not negative-sum game in which inflicting cost and credibility damage on an opponent is often more advantageous than trying to win a halo for oneself. A lawyer who practices commercial transactions or trusts and estates law may know little of the art of generating negative publicity for adversaries; a seasoned plaintiffs' lawyer assuredly knows all about it.
Nor are trial lawyers reluctant to contribute their services in somewhat less visible capacities, such as state or county party chairman, finance chairman, campaign chairman, and party treasurer. In many states-a recent sampling would include South Carolina, Iowa, Tennessee, and Nebraska-the chairman of the state Democratic Party is also a prominent local plaintiffs' lawyer. The treasurer of the Democratic Party in Rhode Island is the senior Ness Motley local partner, John J. McConnell, Jr. In Illinois, Philip Corboy finds time away from his many commitments as one of Chicago's most successful tort lawyers to serve as general counsel of the Illinois Democratic Party.
But the plaintiff bar's best-known asset, of course, is money. Leading trial lawyers as a group are highly liquid, with relatively little of their wealth tied up in big payrolls or fixed assets. And they are known for recycling a remarkable share of their wealth into political donations (the word "tithing" comes up often). When Ness Motley settled on the state of Rhode Island as its base for expanding into the Northeast, the firm soon established itself as the state's largest political contributor, shelling out $540,950 in the 2000 election. Florida's Jim Wilkes, who sues nursing homes, told the Orlando Sentinel that he "probably gave at least $1 million of his own money to campaigns in the last election. "If you took the national and state money that my firm has contributed to campaigns, I could have probably retired on the money."
The trial bar's massive volume of donations is only part of the story. Equally important are the ways in which they give it. Most big-business political action committees-less than aggressive by inclination, scared of regulatory retaliation, and, above all, prizing "access" to elected officials-either give to both sides or at least avoid challenges to incumbents. Not so with trial lawyer political giving, whose guiding motto was once spelled out by Leonard Ring, former president of the Association of Trial Lawyers of America: "You help your friends and kill your enemies." Like other savvy givers, trial lawyers often pull out their checkbooks at strategic times likely to provoke gratitude, such as at the very beginning of a campaign, or afterward when debts need to be repaid. Conveniently, most of their giving is couched as donations from individuals, which is more loosely regulated and less scrutinized by the press than PAC giving; their favored politicians can thus make a big deal out of rejecting PAC donations without having to turn away the nourishing flow of lawyer cash.
When trial lawyers do employ PACs, they have been known to employ them in ways that make it hard to track their generosity accurately. In such states as Texas and Alabama, they have shuffled funds among multiple PACs with innocuous or meaningless names: spouses, minor children, office receptionists, and other employees all have turned up as surprisingly generous donors. "Any contribution that you make . . . of $99 dollars or less will not be publicly reported," confided a "Dear Fellow Attorney" mailing from the California trial lawyers' group seeking donations to fight ballot initiatives that would have curbed litigation. The Los Angeles Times said the non-reportability of under-$100 donations, though a fact well known to political pros, was "almost never one on which they base written fundraising appeals," while the state chapter of Common Cause called it "unbelievable": "These are attorneys appealing to attorneys to violate the spirit of the law."
When it comes to one major branch of electoral office, the state judiciary, there is no disguising the lawyers' dominant role. Visitors from other countries are often surprised to learn that non-federal judges in most American states must run for election. They are downright astounded to learn that in such campaigns the judges are expected to, and do, accept money from lawyers who practice before them (and may also allow such lawyers to manage and organize their campaigns). "There are exactly two types of people who contribute to judicial candidates," observes Yale law professor John Langbein, "mothers, and those who have an interest in the outcome of litigation."
Though even trial lawyers find it hard to defend this arrangement in principle, they put the best face on it by saying that their contributions merely recognize jurists' competence, hard work, and equable judicial temperament, rather than serving as any sort of quid pro quo for favorable treatment. Perhaps. But in 2000, Texas Lawyer reported that plaintiffs' lawyers were forming PACs in Dallas and Fort Worth to "target" judges for defeat. "Organizers from both cities say PAC money could put as much as $100,000 into a single race to defeat an incumbent. But hopefully they won't have to, they say. 'It's like forming a union,' says Chuck Noteboom, president of the Tarrant County Trial Lawyers Association. 'You may never strike, but you may have the threat of a strike."' The same year in Michigan, they failed in an effort to knock off three sitting Supreme Court justices, despite pledges by plaintiffs' firms of up to $500,000 each to the campaign and an ad campaign against the justices that the Detroit News assailed as "truly vicious."
In October 2000, perhaps stung by widespread reporting of the huge volume of trial lawyer political donations, the Association of Trial Lawyers of America published on its Web site an article claiming that its members were, in fact, "being outspent by a factor of at least 10-to-1" in federal political giving. For example, lawyers and lobbyists as a group had given "only" (ATLA's word) $75 million to federal parties and candidates at that point in the campaign, much of which did not come from plaintiffs' lawyers, whereas (for example) the "Communications/Electronics industry" had given $72 million, the "Health industry" had given $49 million, the "Agribusiness sector" had contributed $34 million, and the "Construction industry" had given $30 million. The obvious spin is that lawyers' spending is at most reactive and inadequate to keep pace with its opponents.
ATLA's logic on this matter is revealing. It reaches its 10-to-1 comparison by the simple expedient of counting just about every other donor in the country, with the possible exception of labor unions, as an adversary whose donation is linked as clearly to opposition to litigation issues as those of ATLA members are linked in support of them. Thus, if a Hollywood producer contributes to someone's campaign, even if it's the same politician the trial lawyers are backing, it counts toward the total of "Communications/Entertainment industry" donations; every psychiatrist or birth control clinic operator gets counted as "Health industry"; every farmer in "Agribusiness"; and so forth. Yet it should be clear enough that a donation from a wheat farmer worried about the future of price supports and export subsidy programs in no way serves as a counterweight to the trial lawyers' agenda. By such a yardstick, the only way lawyers would ever not wind up being "outspent" is if they managed to bestow a majority of all political donations all by themselves, which they don't (yet, anyway).
ATLA's Web site statement further asserts that of political donations in the "lawyers and lobbyists" category, "a mere fraction" comes from plaintiff trial lawyers. It doesn't say how high a fraction, but it does go on to make the following interesting claim: "The category of lawyers and lobbyists includes a greater proportion of corporate lawyers who are contributing in favor of tort 'reform' as opposed to plaintiffs' lawyers who are contributing to candidates who support the protection of America's civil justice system."
Can this be true? As ATLA must have been aware, the political giving of lawyers as a group tilts very heavily in favor of Democratic as against Republican candidates. Over the past decade, the ratio at the federal level has fluctuated between 68-31 and 75-25 Democratic, with the 2000-cycle figure coming in at 69-30. And, in fact, donation figures indicate that the biggest "corporate" (transactional and defense) law firms tended to split their donations more or less evenly between the two parties (members of these firms, it should also be noted, give far smaller amounts per lawyer than do the plaintiffs' firms). Meanwhile, the figures for large plaintiffs' firms indicate that their contributions are overwhelmingly Democratic.
The role of trial lawyer support in the national Democratic Party is not denied by Democratic officials themselves. "The trial lawyers are a terrifically important Democratic constituency," executive director Jim Jordan of the Democratic Senatorial Campaign Committee has explained. "They can do more than just write checks. . . . They are comfortable in using populist rhetoric." The connection became embarrassingly obvious with the "call sheet" affair, in which a slip of paper left over from the 1996 campaign became public four years later: "I know you will give $100K when the president vetoes tort reform, but we really need it now, read one of a list of scripted talking points prepared by a staffer for a scheduled telephone call Vice President Al Gore was to have with Walter Umphrey, the Beaumont, Texas, asbestos/tobacco attorney. (When the memo came to light, both the lawyer and the Democrats strenuously denied that any unlawful quid pro quo of money for a veto had taken place.)
In the Senate, the Democrats' lineup of reliable trial lawyer allies has included former trial lawyer and longtime Commerce Committee chair Ernest Hollings, tobacco fee defender Dick Durbin of Illinois, plaintiffs' lawyer spouse Barbara Boxer of California, former Alabama senator Howell Heflin, and many others. On the House side, then-minority leader Rep. Richard Gephardt has made few bones about his allegiances, appearing before ATLA's 1996 annual convention where he (as the Boston Globe reported) "derided corporate 'whining' over frivolous lawsuits." Rep. Patrick Kennedy of Rhode Island, chair of the Democratic Congressional Campaign Committee, in an appearance on CNBC's Hardball said those who criticize the American litigation system should "go someplace else and live." When the Republicans captured control of Congress in 1994, it soon became apparent that the trial bar had long and assiduously been cultivating contacts on the GOP side of the aisle as well. The next year, as part of the famed "Contract with America" episode, the House of Representatives passed a series of significant measures aimed at reforming litigation; the GOP-run Senate did not deign even to hold hearings on most of the proposals. The Senate has likewise balked at anything more than the skimpiest versions of product-liability reform or tobacco fee limitation. When matters came to a vote, the trial lawyers always seemed to peel away enough Republican votes to win, the crucial margin obtained from such major recipients of trial lawyer money as Richard Shelby of Alabama, Fred Thompson of Tennessee, and former senators Bob Packwood of Oregon and Alfonse D'Amato of New York.
Indeed, many of the Republicans, like their Democratic counterparts, turned out to have personal or family connections to the trial lawyer trade. Maine's senator William Cohen, for example, not only served as an officer of his state's trial lawyers association but actually worked for ATLA in the 1960s. Sen. Alan Simpson had a similar story to tell: "I was one of the officers and founders of the Wyoming Trial Lawyers Association," he told the Washington Times. "That allegiance runs deep." To be sure, former Senate majority leader Trent Lott, given his in-law relation to Dickie Scruggs, has recused himself from votes on tobacco fee limits, and has been counted in support of most other litigation curbs. Perennial GOP defector Arlen Specter is yet another with a family stake in the matter: his son Shanin is among the state's best-known plaintiffs' lawyers, whose major wins at trial for his firm Kline & Specter include a $158 million verdict against the Ford Motor Company.
The trial bar's most valuable asset of all in public debate, of course, has long been its ally Ralph Nader, one of the few public figures who can obtain news coverage just by showing up somewhere. Since his emergence in public life nearly forty years ago, Nader has reliably been on hand to hold press conferences and tape commercials for whatever the trial lawyer cause of the moment may happen to be. "We are what supports Nader," prominent Florida trial lawyer Fred Levin told Forbes years ago. "We all belong to his group. We contribute to him, and he fundraises through us." "I can get on the phone and raise $100,000 for Nader in one day," said California's Herb Hafif. "We support him overtly, covertly, in every way possible," said Pat Maloney of San Antonio. "I would think we give him a huge percentage of what he raises. What monied groups could he turn to other than trial lawyers?"
The plaintiffs' bar has long arranged for its messages to come from groups other than itself. The press release beating up on tort reform will bear the name of Texans for Public Justice, Public Citizen, or the Center for Justice and Democracy. Indeed, the trial bar was pioneering techniques of "Astroturf"-the simulation of grassroots support-long before most interest groups got into the act. The grand-sounding Alliance for Consumer Rights, for example, turns out to operate from the offices of the New York State Trial Lawyers Association. ATLA has an entire nonprofit arm, the Civil Justice Foundation, whose quiet function is to dispense grants to consumer advocacy groups.
Even more modest and retiring about its mission is ATLA's Roscoe Pound Institute, which funnels money to law professors and other academics who conduct research that it finds agreeable. Research arguing that the awarding of punitive damages in our system is rational and not excessive, which originated in a Pound Institute grant, has been cited hundreds of times in opposition to punitive damage reform. Recently, as more and more trial lawyers have arranged to have endowed chairs, programs, conference series, or whole law schools named after them, an ever-growing set of job prospects have opened up for academics willing to assure each other that all talk of excessive litigation is a "myth," folktales spread by sore losers in the courtroom process.
Nothing if not flexible, the trial bar maintains a presence on the more conservative side of the political spectrum as well. When voter trends in Texas began making the GOP nomination increasingly tantamount to election in judicial races, trial lawyers began dropping serious money into GOP primaries. A new crop of candidates was soon observed running for judgeships as Republicans, sometimes over the objections of party leaders, many with resumes rich in recent Democratic connections. In the 1998 California elections, a Conservative Attorneys for Civil Justice PAC sprang up to inject $200,000 into GOP primaries on behalf of a slate of right-wing "family values" candidates, though it did poorly.
Some of the plaintiffs' bars' most valuable allies are found among other lawyers, including its sometimes rather nominal adversaries, the defense and transactional bar. The American Bar Association has for many years tenaciously opposed most measures that would curb litigation. So little internal opposition arose to this stance that in the mid-1990s a resolution opposing Republican plans for lawsuit reform was passed on the ABA floor by acclamation. When voter initiatives have been placed on the ballot in California and elsewhere to curtail litigation, both transactional and defense lawyers have been conspicuously absent from lists of financial and organizational supporters. "We in the defense bar have earned a living defending these cases," explained a senior partner at Weil, Gotshal & Manges. "Were they to dry up, we would lose another source of income. I don't mean to be crass about it, but that is a fact of life."
Meanwhile, the adversaries of the litigation lobby are both divided and easily intimidated. Trial lawyers typically perceive a threat to one of their number as a threat to the whole fraternity. Their targets, on the other hand, show no such solidarity. The doctors won't go out of their way to help the product manufacturers, who have nothing good to say about the insurers, who won't lift a finger for the gun makers, who are not about to spare any sympathy for the pharmaceutical companies, and so forth. No matter how clear it is that the precedents forged in lawsuits against the defendants of the moment will later be used against others, virtually all these groups comply with the First Law of Risk-Averse Public Affairs: Never speak out on behalf of anyone who's less popular at the moment than you are.
Besides, the trial bar takes names and has long memories. If you are the chief sponsor of a major bill adverse to ATLA's interests, you had better have a safe seat back home or you are likely to end up like Republican ex-senators Robert Kasten of Wisconsin, who once sponsored product-liability reform bills, or Slade Gorton of Washington, who led the fight for curbs on tobacco lawyers' fees. Other groups, political dabblers by comparison, lack staying power, but you know the trial bar is going to be a major player in your state's politics ten or twenty years down the road.
After a series of anti-litigation ballot initiatives in California, trial lawyers did not just content themselves with defeating the measures through huge ad buys and PR campaigns; they bankrolled a wholly new phenomenon, the "revenge initiative." Liability insurers, for example, were among the first groups to tangle publicly with the lawyers, backing an early California initiative that went down to defeat in the 1980s. Trial lawyers struck back with Proposition 103, a venture in something-for-nothing demagogy that decreed massive cuts in the price of insurance without reducing the cost of providing it. The courts struck down many of the proposition's most confiscatory provisions as unconstitutional, but by that time it had inflicted massive losses on insurance providers in the nation's largest state. Many of the companies, nursing their wounds, have stayed well away from a direct confrontation with the trial bar ever since.
The same lesson was taught to a group of high-tech executives angered at shareholder class actions, who backed an unsuccessful set of initiatives in 1996. Trial lawyers struck back with a "so's-your-mom" initiative, whose harshly punitive provisions would, for example, have forbid companies from reimbursing executives for judgments against them in shareholder litigation. Terrified Silicon Valley managements shelled out $40 million to make sure the measure lost, and since then appear to have given up on challenging the political dominance of the state's trial lawyers. The two well-known tech entrepreneurs who personally backed the 1996 initiatives, Al Shugart (Seagate disk drives) and Thomas Proulx (Intuit financial software), were both given personal reason to be sorry they got involved. Enemies of the initiative put up a Web site attacking Proulx, which included not only a picture of his expensive house, but also, threateningly, its street address. The Wall Street Journal reported in its news columns that opponents "hired a private detective to seek damaging information about him, apparently to no avail." Decades earlier a similar gumshoe operation against Ralph Nader had touched off an enormous outcry; this time around no one seemed to care, least of all Nader. Proulx quit politics in disgust. Meanwhile, lawyer-bought ads showed a picture of notorious Lincoln Savings & Loan figure Charles Keating, whose face then "morphed" into that of Al Shugart, the initiative backer: "Protect yourself from the next Charles Keating," the voice track blared. When a court ruled that the injury to Shugart was blatant enough to qualify for punitive damages, the state trial lawyers' group-which had been refusing to apologize-abruptly settled. By that point, of course, the initiative had long since gone down to defeat.
The shenanigans got even more extreme in Alabama, where control of the state supreme court was at issue. A trial lawyer-backed incumbent faced a challenge from Republican Harold See, a law professor. Eleven days before the election, a political committee was quietly formed, filing a campaign disclosure document that listed only one donation, of $500, from one individual. By state law, donations that came after that point would not have to be disclosed until after the election. The campaign fund called itself the "Coalition for Family Values."
Then the radio blitz hit. "There are some things," a voice darkly intimated, that "Harold See hasn't told you." The anonymous new "coalition," it seemed, had laid their hands on papers from the professor's twenty-year-old divorce and proceeded in their ad to regale listeners with what the Washington Post described as "tawdry" details. Fortunately for See, his ex-wife was willing to issue a public statement defending him from the charges, and he won anyway. Disclosures filed after the election revealed the source of funding for the last-minute effort: $449,000 from a PAC affiliated with the Alabama Trial Lawyers Association.
Despite trial lawyers' skill in achieving their own version of the much-lamented legislative "gridlock," most of the fifty state legislatures have, since the 1980s, enacted at least some measure of tort reform. In a still underreported story, however, the lawyers have proceeded to bring their skills to bear to get the state court systems to throw out most of the reforms as inconsistent, not with the federal constitution, but with their state constitutions. A special task force of ATLA attorneys had worked for years to devise and coordinate legal strategy, concentrating on state constitutional challenges because those decisions cannot be appealed to the federal courts. The supreme courts of Ohio and Illinois, for example, unceremoniously tossed two of the nation's most significant sets of legal reforms in the wastebasket. By 2001, a majority of state court systems had done likewise.
Once again, the lawyers were winning their victories by getting courts to override the decisions of elected legislatures. When the Ohio high court in 1999 by a 4-3 margin tossed out the legislature's comprehensive legal reform package, an editorial in the Columbus Dispatch called the decision "an act of arrogance and an affront to the doctrine of separation of powers." In their contributions to the elected justices up to that date, the trial bar had shown their usual exquisite sense of friend/foe identification, giving the four prevailing majority justices $1,528,054 in the previous seven years, while allotting just $70,704 to the three justices destined to dissent. In addition to wiping the existing reform statute from the books, the Ohio court also made clear that it would tolerate no similar enactments in the future: that is, it decreed that tort law should remain exclusively a judicial province, although the drafters of the Ohio Constitution would no doubt have been astonished at the proposition that lawmakers have no business trying to determine what the future state of the law should be.
In its use of the state courts to slam the door against any attempt to roll back its power, the trial bar has achieved its ultimate act of contempt for democracy. Lawyers themselves, of course, will still be free to do their utmost to persuade the courts to change the state of the law drastically, at any time and on any issue-guns, tobacco, managed care-no matter what the views of the duly elected lawmaking branch of government might be. And once the judiciary seizes the reins, on the Ohio theory, there will be nothing the legislature can do, no enactment it can pass, by which it can reclaim the power to state what the law should be.
More than one observer nominated the 2000 political season as the Year of the Trial Lawyer. The trial bar spent huge amounts of money trying to defeat George W. Bush, who as governor of Texas had made a name in battling for liability reform and had fought high tobacco fees in particular. After the uncannily close vote, the hard-fought Florida recount-in which the fate of the presidency came to depend on which side had the better legal advice-was a fitting cap.
Meanwhile, the U.S. Senate has a new star in North Carolina's trial lawyer/senator John Edwards. Elected in 1998, Edwards had delighted national Democrats by sinking an estimated $10 million from his personal fortune into his campaign to knock off a Republican incumbent. Such was the impression Edwards made as a public and TV personality that, despite his newcomer status, candidate Gore came very close to picking him as his vice presidential running mate. Before long Edwards was canvassing New Hampshire as a prospective candidate in 2004 for the top job himself-the first plaintiffs' lawyer president, should he win.
Actually, it is open to much doubt whether a career in litigation is really a winning background for an aspirant to the nation's highest office. Trial lawyers, who tend to accumulate enemies as they go, are prone to develop combative or abrasive personas. They have done rather poorly over the years in races for governors' seats in California, Michigan, Iowa, and other states; success in an executive post like a governorship demands the ability to unite a wide array of practical players over the long haul. They have enjoyed far more success in running for attorney generalships and U.S. Senate seats, the two great power bases in American politics that allow their occupants to stay more or less indefinitely in crusade or attack mode.
But with the new, explicit alliance between private trial lawyers and government actors going up all the way to the White House, it isn't really necessary for trial lawyers to get themselves elected to anything. Consider, for example, the details that emerged when the team of lawyers who had represented the state of Michigan in the tobacco litigation put their request for fees in arbitration. The arbitration panel ruled that the lawyers were entitled to be compensated for an "acknowledged three-prong strategy" of which only one prong consisted of strictly legal matters. The other two "prongs" consisted of political and public relations work. As the panel noted, Mississippi attorney general Michael Moore, referring to plaintiffs' lead lawyer Richard Scruggs, had testified as follows:
Trent Lott is Dickey's brother-in-law. You don't think that this had anything to do with it? . . . Our team had the Senate majority leader as a brother-in-law of the lead lawyer, and it had an impact on this. And every AG and every other person recognized the power of that.
And here is then-Michigan attorney general Frank Kelley's testimony:
What was necessary to this case was not Scruggs's legal ability but his imagination in developing the media situation and the political situation. . . . when I was called down to the Rose Garden at the White House and I was seated next to C. Everett Koop and Mike Moore in the front row and the President of the United States came out to announce the FDA regulation on tobacco, as I entered the Rose Garden, who came out of the office from conference with the president but Mr. Scruggs. And I knew at that time that I had hired the right operative.
For a public official to have the gall to go before a public panel and boast openly of how one of his colleagues had used his status as brother-in-law of one of the nation's leading politicians for purposes of influence peddling and self-advancement would have provoked outrage even in the age of the Credit Mobilier and Teapot Dome scandals. For him to demand that his colleague be richly compensated precisely because of his cleverness in playing on such political connections is something imaginable only in an era where a power elite has abandoned all sense of shame.
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