Lifting the Skirts, Part II: The Problem with Lawyers

My essay last month, titled “Lifting the Skirts of Progressive Demonizers,” generated more letters, phone calls, and e-mail messages than any of my previous efforts. Many of you, it seems, share my concern over the campaigns underway to demonize unpopular products and industries. (Either that, or the racy headline caught your attention!)

Welcome to the Plaintiffs’ Bar

This month I’d like to introduce you to the plaintiffs’ bar, the principal force in the demonization industry. Plaintiffs’ lawyers emerged as a major threat during the 1980s, thanks to a revolution in the legal interpretation of liability, lenient and corrupt judges, and the decision by state and local governments to contract with private attorneys to represent them in litigation against industries.

In the not-so-distant past, good judges kept junk science out of the courtroom; explained to jurors in plain language about their duties; threw out excessive awards and fees; and refused to approve proposals to adjoin cases into sweeping class action suits. Those barriers to abuse have crumbled in many states, with devastating effects.

Front Groups for Sale

The plaintiffs’ bar demonizes American businesses in two ways. The first is by pouring hundreds of millions of dollars into so-called “public interest” groups and political campaigns. Anti-business activist Ralph Nader’s disciples, in particular, are heavily funded by trial lawyers.

Plaintiff’s attorney Frederic Levin recently told Forbes, “We are what supports Nader.” Another attorney, Pat Maloney, added, “We support him overtly, covertly, in every way possible.” Total receipts for just three of Nader’s groups–the Center for Science in the Public Interest, Public Citizen, and PIRG–totaled $40 million in 1995.

Someone once said you can’t buy a politician, but you can certainly rent one. The plaintiffs’ bar spends so much money renting politicians it should be required to have a Realtor’s license.

Between 1988 and 1996, the Association of Trial Lawyers of America PAC contributed nearly $10 million to political campaigns. Over 90 percent went to Democrats opposed to tort reform. Individual plaintiffs’ lawyers, their spouses, children, and other PACs controlled by lawyers gave even more: According to the American Tort Reform Association, gifts to Congressional and state political candidates from those sources totaled $56 million between 1989 and 1994.

Plaintiffs’ lawyers in just three states–Alabama, California, and Texas–contributed more to state legislative and judicial races between 1990 and 1994 than was given by either the Democratic National Committee or the Republican National Committee in all 50 states during the same time period. Political giving by trial lawyers towers over giving by auto manufacturers, oil companies, or labor unions.

Suing for Fun and Profit

Thanks largely to the efforts of the plaintiffs’ bar, America’s civil justice system has become a gigantic lottery in which alleged victims demand and frequently win enormous sums for what appear to be minor inconveniences–usually resulting from their own poor judgment. Just a few anecdotes serve to illustrate the point:

• Stella Liebeck was awarded $2.9 million after spilling hot coffee from McDonald’s in her lap. She eventually received $640,000.
• A $25.5 million lawsuit was filed against toy maker Mattel in early 1997 because one of its Cabbage Patch Kids Snacktime dolls took a bite out of a 9-year-old girl’s hair.
• On October 8, 1997, a South Carolina jury ordered Chrysler Corp. to pay the parents of a 6-year-old boy $262.5 million when he was thrown from the family minivan in an automobile accident. The parents blamed a defective latch on the rear lift gate–even though the boy was not wearing a seatbelt and probably fell through an open side window.

Entire industries have been crippled or forced into bankruptcy by the plaintiffs’ bar, including asbestos producers, the producers of silicone for breast implants and other medical procedures, and the domestic small-airplane industry. Resolution of the tobacco litigation will add another notch to the pearl handle of the plaintiffs’ bar’s legal gun.

A Loaded Gun

Tobacco firms have already paid $517 million in legal fees and $72 million in expenses to plaintiffs’ lawyers and have agreed to pay tens of millions more. Those payments, according to a recent Wall Street Journal article, “are merely advances on awards the attorneys are seeking in arbitration or were promised for settling suits brought by just four states.” Tobacco companies hope to limit the fees to $500 million a year, but demands far exceed that amount.

If you eat “junk food,” drive a car, use (legal) drugs, own a gun, or drink beer, wine, or distilled spirits, you should be alarmed. If you work for a company that makes any of those products, you should be approaching a blind panic. The legal gun is now swinging in your direction.

Some of the hundreds of millions of dollars earned by lawyers who destroyed the asbestos industry were plowed back into breast implant and tobacco litigation. Now the billions of dollars in fees from those settlements are beginning to finance litigation against other “inherently dangerous” products. On October 30, New Orleans filed suit against gun manufacturers and pawn shops; the private attorney who will represent New Orleans is Wendell Gauthier, a recent tobacco-litigation millionaire.

Dangerous Precedents

Tobacco litigation has dramatically expanded the range of permissible tactics available to the plaintiffs’ bar when engaged in litigation with an unpopular industry. For example, in the Minnesota case, where the tobacco industry settled out of court with the State of Minnesota for $6.6 billion, tobacco industry sources report the following travesties:

• Jury selection: Jurors were not excused even when they stated strong biases against the tobacco industry, while one juror who expressed a view favorable to the industry was removed on the judge’s own motion;
• Discovery: The industry was required to turn over thousands of privileged documents to plaintiffs without court review to determine whether client-attorney privilege was being compromised, and with no opportunity to appeal the ruling;
• Procedure: Attorneys for individual tobacco companies were not allowed to cross-examine the state’s witnesses even when their individual firms were the subject of testimony in court.
• Judge impartiality: The judge in the case imposed on the defense rules concerning evidence and procedure that were dramatically different and more burdensome than those on the plaintiffs.

Clearly, these are dangerous procedural precedents that will affect the next industry that faces its day in court. Yet no other industries or defenders of civil liberties have come to the tobacco industry’s defense.

What Can Be Done?

I am not the only person, and The Heartland Institute is not the only think tank, to express concern over what is happening. The Cato Institute has published excellent research on the dubious legal grounds of tobacco litigation; the American Tort Reform Association tracks giving by the plaintiffs’ bar; and the Media Research Center exposes biased and ill-informed media coverage of the demonizers. But I don’t see anyone putting together a coherent and effective program to speak in defense of unpopular products and industries–and, more importantly, the integrity of the judicial system. Maybe Heartland can fill that void.

Last month I invited people to call me if they wish to participate in a campaign to “demonize the demonizers.” I repeat the invitation here: Give me a call at 312/377-4000 or send me e-mail at [email protected]. I’ll put you on a mailing list to keep you informed of our efforts to launch this project.