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Tipping the scales

Philip K. Howard, a lawyer, is author of, among others, "The Death of Common Sense" and "The Collapse of the Common Good." He is chairman of Common Good, a bipartisan legal reform coalition.

When I was in law school, a decade after the turmoil of the 1960s, the joke about bad justice was captured by Supreme Court Justice Potter Stewart’s statement that he couldn’t define pornography, “but I know it when I see it.” We were taught that justice should not be paternalistic, presided over by judges applying values of right and wrong. Instead, judges should strive to be neutral, avoiding at all costs rulings that required a “value judgment.” Let everyone make their arguments, and, whatever happens, at least we know the results weren’t polluted by the judges’ biases. Who are they to judge?

Walter K. Olson’s new book, “The Rule of Lawyers,” is about the legal entrepreneurs who emerged with this laissez-faire approach to justice. It is a dark story in which Olson lets the lawyers and facts speak for themselves as he guides us through levels of cynicism that may shock even a cynic.

The story starts with the golden promises of fairness for the masses through litigation. Purporting to represent thousands or millions of victims, these class-action lawyers sue corporate America over a wide variety of risks and vices of society, from asbestos to tobacco to fast food. The Robin Hood role they’ve assumed has timeless appeal. The modern twist is that they keep much of the money for themselves.

Richer even than Arianna Huffington’s piggiest corporate executives, these entrepreneurial lawyers operate just at the edge of public recognition -- prominent members include Peter G. Angelos, who used proceeds of asbestos litigation to buy the Baltimore Orioles; Dickie Scruggs, the inventor (if that’s the right word) of tobacco litigation; and Bill Lerach, the cherubic scourge of corporate America. They fly around in private jets, visit the White House (at least in the Clinton years) and laugh at the ineptitude of American government. Once asked if the trial lawyers were trying to run America, Scruggs replied that “somebody’s got to do it.”

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As a lawyer who’s been on the other side of some of these cases, I’ve often wondered how they get away with acting as self-appointed regulators of America. Yet there’s undeniable charm to their audacity. I recently debated Scruggs at Yale Law School, where he asked, laughingly, to be introduced as “the richest and best-looking lawyer in America.” The natural role model of these lawyers is Donald Trump. As for their self-interest, well, this is America. Who are we to judge?

Olson takes the reader into the inner sanctum of this new kind of lawyer: How the cases are brought, how these lawyers, like evangelists, spin a web of moralistic fervor that soon overpowers a judicial system that aspires to be neutral. Think of a hybrid between Elmer Gantry and Professor Harold Hill in “The Music Man.”

Olson shows how in a justice system that honors the right to argue rather than right and wrong, literally any result is possible. The silicone breast implant cases, for example, were based on a supposition, as a lawyer argued, that the “ooze of slimy gelatin” must cause illness. A Houston lawyer named John M. O’Quinn took out advertisements asking “Are dream breasts to die for?” and sent a colleague on television to talk of “time bombs” in women’s chests. O’Quinn went to juries arguing that companies that made silicone were “just plain evil,” securing a verdict in one case for $25 million. Pretty soon his small law firm had thousands of cases, and he was negotiating million-dollar settlements for women whose only illnesses were unverifiable aches. The “truth” was supplied by a few experts who, without valid evidence, were willing to hypothesize terrible consequences. One doctor in Houston made $2 million per year selling his expert testimony and printed brochures for lawyers touting the benefits of his services.

But it was all a sham. In 1994, the New England Journal of Medicine published a Mayo study showing no link between implants and any illness. Several more studies in the next year confirmed these findings. Did the studies end the charade? Certainly not. In a judicial system in which almost any argument is allowed to go to a jury, authoritative studies were little more than an inconvenience, easily neutralized by experts-for-hire. The lawyers issued press releases saying studies showed the opposite. I keep thinking of “The Music Man,” where pool halls were the supposed evil -- “Ya got trouble ... right here in River City ... Trouble with a capital ‘T’ and that rhymes with ‘P’ and that stands for pool!”

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Americans have an abiding belief in the common wisdom of the jury. But these entrepreneurial lawyers do not. Using focus groups, the lawyers figure out which jurors would be most sympathetic to their arguments and then maneuver them onto the jury. In the silicone breast implant cases, for example, they discovered that blue-collar men who like big bosoms would be most likely, out of guilt, to return verdicts for the plaintiffs. Discrimination is practiced overtly; as Olson shows, manuals explain that Mexican Americans are “passive” and “Orientals ... tend to go along with the majority.”

Almost no line of argument is impermissible. Evidence has become a term of art rather than a fact. The Dallas law firm of Baron & Budd was caught with a 20-page memo telling asbestos plaintiffs how to testify: “It is important to maintain that you NEVER saw any labels on asbestos products that said WARNING or DANGER.”

The manipulative skills of the lawyers are more than matched by the rewards. In making his fee application for tobacco settlement, Olson recounts, Angelos sought $30,000 an hour for temporary lawyers he had hired at $21 an hour. Scruggs, ostensibly the lawyer for the state of Mississippi in the tobacco settlement, secured a fee estimated at close to $1 billion. The public process by which Scruggs made this agreement with the citizens of Mississippi was an oral deal with state Atty. Gen. Mike Moore, a close friend and beneficiary of Scruggs’ largess. The “big five” Texas tobacco law firms gave more to the state Democratic Party than everyone else combined.

Why don’t the judges maintain control in the courtroom and enforce ethical rules that would prohibit excessive fees? The judges in most states are elected and receive most of their campaign funding from the trial lawyers. Some of Olson’s stories are bone-chilling. Corruption, apparently, depends on how you define it.

Where are the whistle-blowers? The media in this area are like putty, or worse, all too willing to turn any story of personal tragedy into one of corporate abuse, without stopping to ask who the real victims are when, say, companies are bankrupted by lawsuits. Self-interest has infected all sides in these cases. Large corporate firms (including the one where I work) make millions defending these cases.

How about academics in the ivory tower? A full-length portrait of O’Quinn hangs in the John M. O’Quinn Law Library at the University of Houston. The then-law school dean at Texas Tech, W. Frank Newton, solicited a contribution of $12.5 million from one of the tobacco lawyers before agreeing to serve on an arbitration panel that awarded the lawyer and the other four firms on the case $3.3 billion in fees. When asked about the propriety of his conduct, the dean suggested that his conflict was well-known: “There’s no question about who I am or what my role was.” If he’s honest about it, who are we to judge?

There is, presumably, some public good in all this litigation. Tobacco companies are hardly saints. Thousands of workers have suffered from asbestos. But showering money on victims creates a new class of victims. More than 60 companies have been bankrupted by asbestos litigation, with the loss of an estimated 60,000 jobs.

An additional 2,000 companies are being sued. The lawyers have signed up tens of thousands of workers who have no illness but fear they might get sick. This flood of “fear” cases means there’s not enough money to take care of the workers who really are sick. Social problems of this magnitude should be resolved by Congress, not by a group of lawyers whose main interest is to get rich.

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Olson’s books “The Litigation Explosion” and “The Excuse Factory” were important but were considered conservative tracts. In “The Rule of Lawyers,” he both moderates his tone and arrives at a distinctly un-conservative conclusion. What’s needed, he argues, is regulation. Corporate executives should be accountable, so why shouldn’t lawyers? I’d go further. We have the wrong idea of law. Law is not supposed to avoid values of right and wrong, but to assert and affirm those values. Justice Stewart was right after all: When judges abdicate that role, the wolves move in. You’ll know it when you read it.


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