Smearing the Trial Lawyers
By Robert Kuttner
Editorial, The Boston Globe - August 25, 2004
IF YOU LIKE the Karl Rove-inspired attack on John Kerry's Swift Boat service, you're going to love the US Chamber of Commerce's coming assault on John Edwards. Like the right-wing vets smearing Kerry's Vietnam record, the anti-Edwards group is nominally an independent committee. But as The New York Times reports, the co-chairmen of the new "November Fund" are a former Republican National Committee chairman, Bill Brock, and a former chief of staff to Bush Sr., Craig Fuller. The core of their attack will be that Edwards is (gasp) a trial lawyer.
For decades, "trial lawyer" has been used in Republican speeches as an epithet. Business executives applaud in appreciation -- and everyone else scratches his head. What's so terrible about trial lawyers? Are they worse than, say, corporate lawyers? The attack on trial lawyers as ambulance chasers and cost inflators invites exploration.
The corporate elite and the GOP have three grudges against "trial lawyers." First, damage awards cost business money when they uncover corporate practices that swindle, maim, or kill ordinary citizens. And as champions of the little guy, trial lawyers are among the few well-heeled professionals who donate more money to Democrats than Republicans. Break their rice bowl and there will be one less source of money for the opposition party.
It further galls the right that some small fraction of trial lawyers actually get rich by helping injured people to collect. Notice that when some business mogul becomes a billionaire, the right insists that he earned that money by bettering mankind. But when a talented personal injury lawyer prospers by helping an injury victim, he's a parasitic shyster.
So the business lobbies and the Republicans have been promoting what they call "tort reform." The idea is to make it harder for ordinary people to recover damages and to limit the amount they can collect. But what of the substance of the right's case? Isn't there a real problem here? Not really. For starters, the right can blame itself. As more of the economy becomes deregulated, the common-law remedy of going to court is often all that allows victims any redress. The right's war on health, safety, financial, and environmental regulation is substantially responsible for the litigation they now oppose as well. Regulation, in this respect, is the ounce of prevention. Litigation sorts out the mess afterwards when regulators could not police corporate conduct in advance, and lawsuits usefully bring ugly facts to light. If the tobacco industry didn't want lawsuits, it shouldn't have hidden evidence that smoking caused cancer. Or take Enron. In the 1990s, the corporate right and the Republican Party got rid of much of the regulation that should have prevented the conflicts of interests that allowed Enron's scam to flourish. Once Enron folded, private lawsuits uncovered a lot of the details of the wrongdoing. Thousands of former employees still lost most of their pensions, but they got something.
So if you don't want litigation, stop shooting the regulators. Take away the threat of a lawsuit, and unscrupulous businesses will be even freer to do damage. Yes, there are a few spectacular cases of runaway juries and exorbitant awards, but also many thousands of legitimate lawsuits that are the little guy's only source of redress. That's why, when you get beyond the country club set, very few regular people understand why they're suppose to hiss when they hear the dread words, "trial lawyer."
The right also blames a large portion of medical inflation on malpractice awards. In fact, rising malpractice premiums and "defensive medicine" account for less than 10 percent of rising medical costs. The bigger causes of medical inflation are new technology, an aging population -- and the 30 percent in profits and administrative costs taken by for-profit health insurers. Scapegoating malpractice awards is a handy diversion. It's true that doctors in a few specialties have faced big premium hikes in their malpractice insurance. But many medical societies are notoriously reluctant to police their own. That's why you read so many newspaper stories about physicians whose licenses should have been lifted years ago. There are relatively few bad apples in a noble profession, but a small fraction of doctors account for a large share of malpractice costs.
The attack on trial lawyers is an attack on the rights of ordinary Americans by the corporate elite. It will be useful to have that reality come to light. If Edwards is half the skilled attorney he's said to be, he'll learn from the Kerry smear and turn the tables on this bogus attack, swiftly.
Robert Kuttner is co-editor of The American Prospect. His column appears regularly in the Globe