A Trial Lawyer on Ticket Has Corporate U.S. Seeing Red

The billionaire chairman of an insurance company describes members of the group as “terrorists.” To the head of a national wholesalers group, they seem like “predators.”

The U.S. Chamber of Commerce is co-sponsoring a $10-million advertising campaign to “educate voters about the devastating impact” these people are having on the American way of life.

The target of these attacks is not Al Qaeda or some new pestilence sweeping the nation. It’s trial lawyers.

These days, the people who bring personal injury lawsuits against corporations, insurers and healthcare providers have replaced “union bosses” as the group that corporate America identifies as its key public enemy. And this year, more than ever before, the war of words between corporate leaders and trial lawyers echoes in the battle for the White House.

President Bush has long campaigned against what he calls “frivolous and junk lawsuits,” and he hopes to make “tort reform” a centerpiece of a second term in office. Many business leaders hope he gets a chance.

“We cannot ignore what may prove to be a make-or-break election for legal reform at the national level,” said Thomas J. Donohue, the chamber’s president, shunning the business lobby’s traditional neutrality in presidential races. “When voters go to the polls, they need to know lawsuit abuse destroys jobs, drives doctors out of business and forces companies into bankruptcy.”

The assault on trial lawyers has particular resonance in 2004, as business leaders confront the prospect that a highly successful trial lawyer -- Sen. John Edwards of North Carolina -- will be a heartbeat away from the presidency if his Democratic running mate, Sen. John F. Kerry of Massachusetts, wins the White House.

“You cannot be pro-doctor, pro-patient, pro-hospital and pro-trial lawyer at the same time,” Bush said at a rally Friday in West Virginia. “You have to choose. My opponent made his choice, and he put him on the ticket.”

While business leaders have put their money behind Bush’s campaign, the trial lawyers have put their dollars behind the Democrats. They say Kerry and Edwards will preserve the right to jury trials as a check on corporate power.

John O’Quinn, a veteran trial lawyer from Houston, also sees this as a make-or-break election.

“Corporate America is in charge these days. They control the White House, the Congress and the Supreme Court. But so far, they don’t control the right to trial by a jury. That’s the only place where ordinary citizens can go and have their complaints heard,” Quinn said. “Ordinary people can’t hire lobbyists in Washington, but in the courtroom, they get an equal chance to stand up against a corporation.”

He and other trial lawyers find it laughable to hear stories that they get rich filing “frivolous” lawsuits.

Unlike corporate lawyers, who are paid handsomely by the hour to protect their clients, those who sue on behalf of plaintiffs usually get paid only if they win a verdict or a settlement.

Ken Suggs, the president-elect of the Assn. of Trial Lawyers of America, is a medical malpractice lawyer in Columbia, S.C. To win a verdict, he needs to convince all 12 jurors that a doctor or a hospital violated professional standards of care.

“Juries don’t like to hand down verdicts against doctors,” he said. “You can file a few frivolous cases, but if you do, you will be broke in a short time.”

Both sides can point to opinion surveys to bolster their causes.

Most Americans -- 80% in one recent poll -- say the nation has too many lawsuits and too much litigation. Yet when Time magazine conducted a poll on the selection of Edwards as the Democrats’ vice presidential nominee, his career as a trial lawyer helped him with voters. Among those surveyed, 55% said his work as a trial lawyer showed he was “willing to fight for the average person against the big companies.”

Voters in the same poll were more troubled by Vice President Dick Cheney’s background as the chief executive at Halliburton, the Texas oil-services company and defense contractor that has received billions of dollars in contracts to help rebuild Iraq. About 15% said they viewed him more favorably because of his Halliburton connection, while 51% said they viewed him less favorably for this reason.

“People have conflicting views” on lawyers and lawsuits, said David Winston, a Republican pollster who has conducted focus-group discussions on the issue. “They tend to think lawsuits are detrimental to the country. But they want a lawyer when they have a real need for one.”

Despite talk of a litigation explosion, however, it is not clear that lawsuits or big verdicts are steadily growing.

The Justice Department’s Bureau of Justice Statistics and the National Center for State Courts track civil trials and verdicts in the nation’s 75 largest counties. In April, the bureau reported that in the last decade, the number of cases had gone down, not up.

The number of general civil cases disposed of by trial in the nation’s largest counties declined from 22,451 in 1992 to 11,908 in 2001, it reported -- a 47% decline. The plaintiffs won about half the time, and the overall median award was $37,000 in 2001, down from $65,000 in 1992.

These cases included automobile accidents, medical malpractice and product-liability claims. About one-third of the cases involve contract claims, which typically involve one business suing another.

The medical malpractice claims resulted in larger verdicts; 27% won a verdict, but the median amount in 2001 was $431,000, up from $253,000 in 1992.

These data include only trials and verdicts; most civil suits are dismissed or result in settlements, and no figures are available on those outcomes. Nonetheless, government statistics do not show a sharp rise in big-money verdicts.

Close readers of the news may be surprised at the relatively small size of the typical verdict because of what University of Wisconsin law professor Marc Galanter calls “media distortion.” Multimillion-dollar verdicts won by plaintiffs are deemed news. Small verdicts are not.

He cites studies of newspapers and magazines during the 1990s to illustrate the point. A study over six years in the New York area found the median jury award to be $250,000. However, during the same period, the median of the jury awards cited in the New York Times and New York Newsday was $4.3 million.

“Someone relying on the press for a picture of the civil justice system would be seriously misled as to the size of jury awards,” Galanter said.

The lawsuits that have caused the most controversy are class actions, brought on behalf of large numbers of plaintiffs. Rarely are class-action claims tried before a jury, but quite a few result in big settlements that enrich the lawyers who brought them and sometimes bring only paltry rewards to each plaintiff.

In Congress this year, Republican leaders have pressed for two tort reform proposals. One would take most class-action suits out of the state courts and put them into the federal courts. Proponents are counting on federal judges to be more skeptical of lawyers who claim to represent thousands of plaintiffs.

Senate Democrats took up the cause of states’ rights and blocked the class-action bill. They said most of the suits were filed for violations of state consumer-protection laws, and that they were better handled in the courts of those states.

The second GOP proposal would set a national limit of $250,000 on noneconomic damages such as pain and suffering in medical malpractice cases. This idea, championed by the American Medical Assn., is modeled on a California law.

It has been promoted on the campaign trail by the president and vice president.

Most experts say the California-style limit on noneconomic damages has slowed the increase in malpractice insurance costs in states that have adopted the idea. However, most experts also discount Bush’s claim that malpractice lawsuits are behind rising healthcare costs.

The nonpartisan Congressional Budget Office concluded in January that imposing new limits on jury verdicts would have at most a tiny effect on the nation’s bill for healthcare.

“Malpractice costs account for less than 2% of healthcare spending,” the CBO said. So even a sharp drop in premiums would cut the nation’s healthcare bill by less than one-half of 1%, the agency concluded.

Regardless of whether the issue eventually sways many voters, leaders of the trial bar say ruefully that they expect to get prominent mention in the campaign.

“Karl Rove [Bush’s political strategist] figured out a long time ago that attacking the civil justice system is a good fundraising tool for the Republican Party,” said Suggs, the trial lawyers’ leader. “These days, we get mentioned more often in presidential speeches than Osama bin Laden. But then again, Bush knows where we are.”