On February 08, 2007, column reprinted following, this commentary, amid toying with philology, discussed the risk of promotion by the  incoming 110^th Congress of reckless contingency-fee litigation and the restraining force of President George W. Bush. It may come to pass in the ensuing Presidency and the 111^th Congress that the risk is so pervasive “we ain’t seen nothing” yet.

Except for the major-media WALL STREET JOURNAL and the specialized BLOOMBERG NEWS, possibly a few others, the media has accorded little attention to what has been, and is, brewing within some States, now nationally.

Two of the States in which plaintiffs’ contingency-fee lawyers, the so-called “Trial Bar,” flourished, Mississippi and Texas, changed their law more evenly to balance the litigating forum.  New Jersey and New Mexico went somewhat the other way.  Colorado went more wild, increasing limitations upon what euphemistically some people term “noneconomic” damages – in other words, punitive damages.  Maryland and Oregon stretched out statutes of limitations, thus allowing more years after an alleged tort was committed to file litigation.  Colorado, Illinois, Texas and Washington considered other pro-plaintiff proposals.

So much for the States. However, in the aggregate, litigation in State courts looms larger than in Federal courts because the overwhelming preponderance of tort lawsuits is there.

How about the Feds?  We must speculate.  We must do so in the context of the worldwide economic jolt, recession or depression, whichever it turns out to be; the unimaginable excess of national debt and of Congressional earmarks; problems with warfare and final American disposition in Afghanistan and Iraq; and unpredictable terrorist risks. In other words, except to that powerful lobby consisting of the American Association for Justice – such accuracy and objectivity of that name! – and the gigantic and affluent “Trial Bar,” there isn’t much focus on this subject.

But that specialized focus is for real.  The proponents of facile and essentially unlimited tort litigation donated – aye, invested – about $ 183 million in the 2004 Quadrennial Elections and may have hit $ 200 million this year, 75% or so to Democratic candidacies.  THE WALL STREET JOURNAL even printed an editorial entitled “Biden of Asbestos,” summarizing the Vice President-elect’s and his son’s support for major tort litigation in Delaware. A senior, and probably very competent, Obama advisor performed some paid work for the American Association for Justice. Two examples, of course, in and of themselves don’t prove much but those who follow the activities of this aggressive and influential segment of the American Bar are well aware of the sweeping, and generally expertly orchestrated, effort to influence the Presidency and Congress. Preservation of the Class Action Fairness Act of 2005, a product of the 109^th Congress and the Bush Administration, will be only a portion of the defense effort.

Only in America are defendants penalized to the tune of millions or more dollars by runaway juries and frequently constrained judges in a civil, not criminal, trial. So much for the functional equivalent of “guilty beyond a reasonable doubt.” Although the trial is not criminal, there is no guilty finding and the looser “preponderance of the evidence” rather than “guilty beyond a reasonable doubt” test applies.

In the interest of disclosure, I mention  that in many years of organized-bar activity, including ten years in the American Bar Association House of Delegates and four on its Board of Governors and other positions in that and other formal bar organizations,  I consistently opposed the excesses of the “Trial Lawyers.”

 

What’s In A Name?  – “Trial Lawyers” Alone for Justice?

By Marion Edwyn Harrison, Esq.  

February 08, 2007

Perhaps it is true, with apologies to the Immortal Bard, to whom the line is attributed:  “What’s in a name? That which we call a rose by any other name would smell as sweet . . .” If so, the message at times may be ripe for antonymic application.

Judging by the language of commercial advertising and “politics-speak” over many years, it is clear that a name or slogan as originally formulated sometimes attracts unwanted repute. The almost invariable reaction:   Change the name or slogan.

Thus, the salubrious sound of “free trade” began as “resale price maintenance.” “Inheritance taxes” to those who oppose them became “death taxes.” Uniquely and tragically, “abortion” became, at least to its proponents, “pro-choice.”   The wordsmith granddaddy of them all may be “life insurance” which, to be sure, neither assures nor ensures a life but pays a benefit to somebody other than the deceased when the insured dies.

So much for amateur philology.  The latest verbal recreation is that of the gigantic and, unfortunately highly successful,  lobby for, and association of, so-called “trial lawyers” – that is, the contingency-fee  bar which has wreaked such havoc upon business, hospitals, physicians and other victims, increasing costs to huge numbers of citizens as unnamed victims and reducing income to business, hospitals, physicians and others as named victims.

The semantic evolution in the quest for respectability reveals a good bit:

          1947 National Association of Claimants’ Compensation Attorneys

          1960 National Association of Claimants’ Counsel of America

          1964 American Trial Lawyers Association

          1972 Association of Trial Lawyers of America

          2006 American Association for Justice

Wow! How masterful!  Businesses, hospitals, physicians and other litigation victims, as well as their attorneys, are all in favor of injustice!

Whatever its altruistic and beguiling name, the American Association for Justice (“AAJ”) is big-time.  In 2005 alone AAJ spent some $ 7.2 million.    That is considerably less than business interests spent but AAJ’s expenditures are more single-purpose:   juries generous with other people’s money, big awards, commensurately large plaintiffs’ attorneys (almost entirely contingent) fees.

Free Congress Foundation from time to time has addressed, and continues to address, this overall subject, including its forum on April 10, 2004, in the Senate Dirksen Office Building, keynoted by Kentucky’s Senator A. Mitchell (Mitch) McConnell, Jr., now Senate Minority Leader. President George W. Bush also has attempted to infuse some reasonableness and fairness into the system, including his support for, and signing of, the Class Action Fairness Act of 2005, in February 2005.

The bulk of the problem, of course, lies in the States and their courts.  However, one must be alert as to what, if anything, the newly organized 110^th Congress may attempt. However beguiling the name of the organization, the AAJ, similar organizations in the States and great numbers of affluent and politically hep plaintiffs’ contingency-fee lawyer
s know how to organize and how to politick. (Maybe Presidential candidate John Edwards, having amassed tens of millions of dollars in such fees, is an exemplar.)

 

Guest columns do not necessarily reflect the views of Accuracy in Media or its staff.

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