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In Defense of Courtroom Advocates

Emily Bazelon is a senior editor at Legal Affairs magazine.

Before John Edwards launched his run for the vice presidency, the Bush campaign said it was itching to run against a trial lawyer. “Bring on the ambulance chaser,” then-White House spokesman Ari Fleischer beckoned. Last week, Vice President Dick Cheney was on the stump in Ohio blaming rising healthcare costs on “runaway litigation” and backing a $250,000 cap on medical malpractice awards, a tort reform proposal that the Kerry-Edwards ticket opposes.

Swipes at trial lawyers are sure winners with business groups. When John Kerry picked Edwards as his running mate, the U.S. Chamber of Commerce pledged to abandon its traditional neutrality to oppose their candidacy. It’s not entirely clear that this Republican line of attack has broad traction, however. A recent poll shows that Edwards’ experience as a trial lawyer makes more people view him favorably (35%) than unfavorably (26%). Still, the Bush campaign is hoping to tap into a suspicion that dates from the days following the American Revolution, when attorneys were denounced as “bloodsuckers, as pickpockets, as windbags, as smooth-tongued rogues,” in the words of historian John Bach McMaster.

Calling Edwards an ambulance chaser ties him to the profession’s unseemly, bad-apple practitioners. But Edwards’ real record as a lawyer offers an opportunity to look at the various strands of lawyering in the trial bar.

Sometimes trial lawyers play Robin Hood. They have initiated suits that spurred the return of Nazi-era gold to the descendants of its rightful owners, forced tobacco companies to compensate state governments for smoking- related medical expenses and won the money to clean up polluted neighborhoods. Whatever their imperfections, these are lawyers with a cause.

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Jan Schlichtmann, the subject of Jonathan Harr’s book “A Civil Action,” is a flamboyant high-roller. But he also laid out $2.6 million to bankroll the pollution case that Harr wrote about, in the process going bankrupt on his clients’ behalf.

Plaintiffs’ lawyers who file class actions on behalf of shareholders or consumers are often criticized for making lots of money while doing little or nothing of value. Some companies settle when they’re sued not because they’ve done real harm but to avoid harassment and expense. And some class-action lawyers reap large fees for themselves and negligible per-person benefits for clients. At the same time, many bad business practices would go unaddressed and undeterred if enterprising lawyers didn’t profitably aggregate small, individual claims. Are the excesses of some of these attorneys reason to condemn all class-action attorneys?

Edwards had a different sort of practice, representing individual clients who had been badly harmed by malfunctioning products or the mistakes of doctors and hospitals. To be sure, personal- injury verdicts are an uneven form of justice. A few injured people win millions, while many others get nothing. Still, in 2001, plaintiffs won punitive damages in only 6% of civil trials; the median award was $50,000.

And in the absence of stiffer regulation or compensation funds for injured consumers and patients, larger jury awards serve a purpose. They make it expensive for manufacturers and healthcare providers to cut dangerous corners. By all accounts, Edwards served this goal well. Over 12 years, he won $175 million for his clients. Edwards also made millions himself, through contingency fees of between 25% and 40%.

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Now the Republicans are attacking him for “twisting the legal system to pillage the productive sector for personal gain,” as former House Majority Leader Dick Armey put it. But Edwards got rich as a lawyer by doing his job well and choosing with care. Big contingency fees reward lawyers for taking the chance that they will earn nothing if the client loses. The fees also give them the resources to invest in the intensive preparation -- mining piles of documents, hiring top experts -- that it takes to sue a defendant with its own big-gun legal team.

Outside the business crowd, President Bush and Cheney’s attacks on Edwards for the kind of law he practiced -- when there’s no proof that he practiced unethically or dishonorably -- may come back to bite them. Twenty-five percent of the members of the American Trial Lawyers Assn. are Republicans.

“If the rap on Edwards is that he is the friend of personal-injury trial lawyers, where does this leave the Republican National Committee? Is the RNC the friend of the drunken driver?” personal-injury lawyer Ken Connor asked in the Orlando Sentinel. Connor, who is a Republican, pointed out that his party’s Senate candidate in Florida is a former trial lawyer. So is Sen. Orrin Hatch, the powerful Utah Republican. And so was Abraham Lincoln.


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