PERSONAL PERSPECTIVE : Why Bush Crowd Hates Arnie Beckers of the Legal World: They Defend Victims

In my final year of law school, as my classmates and I lined up to interview with high-paying corporate firms, I drew snorts of laughter by posting, next to the big firms’ resumes, one for a personal-injury law firm named Chase & Bulances--pronounced “chase ambulances.”

Some 23 years later, I no longer laugh at trial-lawyer jokes. The Bush-Quayle campaign against trial lawyers is serious business. It is a thinly veiled effort to trade victims’ rights for corporate and insurance profits by repealing a big chunk of civil law and order in America.

Trial lawyers are an easy target. They represent real people seeking redress for personal injuries, business fraud or other wrongs. Often of ethnic background, they generally practice alone or in small offices. Most attended ordinary law schools. All rely more on their verbal skills than on mountains of paper. In “L.A. Law” terms, they are the Arnie Beckers of the legal world, not the Leland McKenzies or the Michael Kuzaks.

But trial lawyers infuriate George Bush and Dan Quayle and their wealthy cohorts for reasons closer to home. Unlike corporate and insurance law firms that grind out bills of up to $500 an hour, win or lose, trial lawyers charge their clients a percentage of the amount won by trial or settlement. It’s a contingent fee: No show, no dough. With the trial lawyer bearing all the risk and expense, it’s easier for a claimant to sue.

But if a fee system that makes access to justice affordable for all were not bad enough, trial lawyers often win, and sometimes win big. When they do, they carry home big bucks, from the loser. Thus, the second bone in the throat: Trial lawyers cost businesses and insurance companies money, and the more they win, the more they get to keep for themselves.

The problem, Bush and Quayle say, is not the cost of dangerous products and pharmaceuticals, medical malpractice and consumer fraud but a “litigation crisis.” And the cure? “Tort reform,” or “legal reform,” which means changing the law so that injured people won’t be allowed to recover as much, and trial lawyers will lose incentive to bring cases or to resist cheap settlement offers and push the cases to jury resolution.

This is the agenda behind Bush and Quayle’s trial lawyer-bashing. It includes nullifying state laws that, for 40 years, have permitted consumers injured by defective products to recover compensation without having to prove that the manufacturer was negligent; caps on how much patients may recover when injured by medical malpractice, part of the Bush-Quayle health-care reform package, and restriction or abolition of punitive damages, the civil penalties allowed when injurious conduct is found not only wrongful but intentionally so.

Bush and Quayle say these sorts of restrictions of victims’ rights are necessary, because lawsuits are bleeding American businesses, doctors and ultimately consumers dry. If that were true, we might have to confront whether compensating ourselves for our injuries hurts us more than suffering in silence.

But the claim is not true. In fact, because they can--and do--pass on to consumers the costs of their harmful mistakes, businesses and doctors are doing just fine. What really pains them is how much they have to pay for insurance. But rather than accept insurance companies as the problem, business has allied itself with the insurance industry to blame the trial lawyers--and you and me.

Insurance companies are the secret profiteers in the “legal reform” wars. One might think insurers would be happy with more liability because it gives them more business. But today’s insurers--the people who spent $50 million of our premiums trying to defeat Proposition 103--aren’t content with performing a banker’s function, as was originally intended. They would rather play a protection racket--take in more and pay out less.

In 1989, Forbes magazine published a long article about trial lawyers, “crazy” lawsuits and “the insurance rates crunch.” Of the total cost of damage suits, the piece reported, 46% was paid to victims and 21% to their lawyers. Who got the other third? Half of it--16%--went for legal fees and expenses of those sued. In other words, insurance lawyers, who bill hourly, win or lose, were paid almost as much as their contingent-fee trial-lawyer counterparts.

California has already undergone “legal reform” stemming from a “litigation crisis.” Seventeen years ago, as malpractice insurers drove their rates up, the Legislature enacted a law that could have been written by Bush and Quayle. It put a flat limit on every malpractice victim’s recovery, and another flat limit on the percentage fees trial lawyers could charge in malpractice cases. The result? Insurance rates did not go down. What was withheld from the victims was spent or kept by the insurance companies.

A case this spring demonstrates the point. After suffering a crippling stroke during unrelated surgery, a Los Angeles woman sued her five doctors. The judge ruled she had waited too long to sue. She appealed. The five doctors’ insurance companies hired seven (count ‘em) law firms, which, paid by the hour, filed five redundant legal briefs on the same question. In its decision, the state Court of Appeal took the unusual step of inquiring about, rhetorically, “who is paying for the legal work before us.”

This is why the Bush-Quayle campaign for “legal reform” is phony. Real reform would start with the insurance companies. The campaign against trial lawyers is an attack on victims and consumers, spurred by irresponsible greed. We took that route in the 1980s. But even in the Willie Horton campaign, Bush and Quayle never suggested the solution to the problem was to repeal the rape laws. Yet that’s about what they’re telling us now.