A very uncivil war
22 November 2004
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If you are looking for a sign as to how politically hot the issue of tort reform will be in George W Bush’s second term, then consider the latest box office smash The Incredibles.
Audiences on both sides of the Atlantic are being invited into a parallel universe where superheroes are forced to go into hiding, seeking refuge in normal life where they live under aliases. So what villainy has brought about this dire state of affairs? Well, it is all the fault of those evil trial lawyers and an ungrateful public’s love of law suits. Our hero, Bob Parr, aka Mr Incredible, opts for early retirement thanks to a flood of lawsuits brought on behalf of people he has saved from the paths of runaway trains, only to be sued for causing cricked necks and the like.
You do not have to be a paranoid trial lawyer to spot the subtext here. “I just always wondered when a superhero broke through a wall, who was going to pay for that wall?” pondered the film’s writer-director Brad Bird. “In the small-minded world we live in, that deed’s not going to go unpunished.”
Philip Howard, founder of the law reform coalition ‘Common Good’ and vice-chairman of Washington-based law firm Covington & Burling, celebrates this rather unsubtle satire as a searing insight. “The Incredibles is great entertainment,” Howard enthuses, “but it also performs an important public service. It highlights an impact on American life of a steady undercurrent of legal fear – now a subject of parody as well as our daily frustration.” His group is backed by such luminaries as Newt Gingrich and Senator George McGovern, both on its board, and represents “a bipartisan coalition dedicated to restoring common sense to American law”.
Not that the US public will need much persuading of the cartoon villainy of lawyers. The negative political capital of being a lawyer was very much in evidence in the US election campaign. Take this excerpt from one of the televised debates between Democrat vide-presidential candidate John Edward, a trial lawyer, and his opposite number Dick Cheney. “This one is for you, Mr Vice-President,” said the moderator. “President Bush has derided John Kerry for putting a trial lawyer on the ticket. You yourself have said that lawsuits are partly to blame for higher medical costs. Are you willing to say that John Edwards, sitting here, has been part of the problem?”
As soon as Bush was back at home this month, safe in the White House, the President (a keen tort reformer when Governor of Texas) was promising to spend some of that ‘political capital’ on cutting down on legal excess. The issues “have been debated and got thwarted a couple of times by the Senate”, he said, but now there was about to be some real action.
“No doubt it’s a priority issue for him,” reckons Gretchen Schaefer, a spokeswoman for the American Tort Reform Association. “He’s spoken about tort reform throughout his first four years as president already. We now have quite a bit of support in Congress for specific federal laws.” The group reckons that the Republican gains of three seats in the House of Representatives and four seats in the Senate will strengthen support for civil justice reforms. In particular, Schaefer expects class action, medical liability and asbestos legislation to be implemented in the second term. She also hopes that there will be legislation directed at curbing frivolous litigation and forum shopping, as well as the introduction of a ‘Cheeseburger Bill’ to shield the food industry from obesity-related lawsuits.
Howard at Common Good is taking the political rhetoric with a pinch of salt. Tort reform has been locked in political stalemate for years, he reckons. “It wasn’t a great election campaign from that point of view – all heat without light,” he says. “The Republicans say we’ve got to get rid of frivolous cases, and everyone agrees. The Democrats say we have to protect victims from abuse and malpractice, and everyone agrees with that too. But the current legal system isn’t accomplishing either one.
“In the meantime, the healthcare system is going into meltdown and it’s contributing to a costs explosion. Doctors are afraid to talk to each other and obstetricians are quitting because they can’t get insurance.”
But what do the plaintiff lawyers and consumer groups, which have spent the last few months fighting Bush’s presidency, make of the prospect of ‘four more years’? The Association of Trial Lawyers of America (ATLA), one of the biggest political donor groups, which heavily backed the Democrat challenge, took a typically robust pre-election line. A spokesman decried Bush as “the first president who has really made the taking away of Americans’ legal rights a major part of his political agenda”.
In the wake of election results, there is a despairing tone to its latest pronouncement. “The moral value of ‘equal justice before the law’ is dear to Americans of every faith, and this is what we work for every day – the legal rights of every American family,” comments Todd Smith, ATLA president. “How is penalising the patients most seriously injured by medical malpractice or disarming consumers, workers, or shareholders ripped off by corrupt corporations consistent with America’s moral values? Yet these are the ultimate goals of those special interest groups who invoke moral values as they work to undermine our civil justice system.”
Joanne Doroshow, executive director of the New York-based consumer rights group the Centre for Justice & Democracy (which has filmmaker Michael Moore and the independent presidential candidate Ralph Nader on its board), is also digging in. “We expect to be facing a lot of fights on this over the next four years,” she says. “It’s just going to be constant. Groups like ours and people who are injured and need to use the legal system are going to have our hands full trying to protect the system from those who want to destroy it.” It is going, she says, to be brutal.
The most astonishing moment in senator John Edwards’ early life as a claimant lawyer was when he adopted the persona of an unborn child to win over a jury in a landmark cerebral palsy case in his home state of North Carolina. “She speaks to you through me,” the then 31-year-old lawyer told a spellbound court. “And I have to tell you right now – I didn’t plan to talk about this – right now I feel her. I feel her presence. She’s inside me, and she’s talking to you.” He was arguing that a doctor, by waiting to perform a breech delivery rather than an immediate Caesarean, permanently damaged the girl’s brain.
The US jury was putty in his hands and the girl’s family was awarded $6.5m (£3.5m) in damages. During the election campaign, Edwards, as vice-presidential candidate, made a virtue out of necessity and talked up his lawyer past. “What I’ve been doing my entire life [is] fighting against big corporations, pharmaceutical companies, big insurance companies, big HMOs [health maintenance organisations],” he said recently. His good deeds paid well and he is reckoned to have netted a $38m (£20.6m) fortune during his 20-year career. His speciality was cerebral palsy cases. John Kerry’s own press secretary described Edwards’ campaign as “wholly funded by trial lawyers”.
What his critics say: “Trial lawyers are the pariahs of the business community, which is more frightened by them than terrorists, China or higher energy prices,” a spokesman for the National Association of Manufacturers told The New York Times when Edwards’ candidacy was announced.
Early on in the recent election campaign, the President showed that he understood the political value in lawyer-bashing. “You cannot be pro-small business and pro-trial lawyer at the same time,” he explained to voters in Pennsylvania when John Edwards announced his candidacy. “You have to choose.”
The President, when Governor of Texas, inveighed against “junk lawsuits that clog our courts” and signed off legislation cracking down on personal injury lawyers who filed frivolous lawsuits and ensured that deep-pocket defendants did not get stuck with the whole cost of litigation. According to the Texas Department of Insurance, by 1997 the legal reforms enacted in 1995 had saved Texas consumers approximately $610m (£329.9m) in liability insurance costs directly attributable to legal reform.
What his critics say: “Bush is the first president who has really made the taking away of Americans’ legal rights a major part of his political agenda,” says Carlton Carl, the vice-president of the Association of Trial Lawyers of America. “The fact is that he loves lawyers. But he loves the lawyers who represent Enron, Firestone and those who oppose people who are injured through no fault of their own.”
Philip K Howard is the vice-chairman of US law firm Covington & Burling, but is best known to non-lawyers as the founder of a new law reform coalition called ‘Common Good’. The group features such luminaries as former speaker of the House of Representatives Newt Gingrich and Senator George McGovern on its board.
Howard resists the ‘tort reformer’ tag. Common Good is about legal reform, he says. “It applies more broadly than merely tort, which has become synonymous with corporate legal reform, rather than legal reform that helps real people; and also it’s synonymous with putting limits on crazy verdicts which we think are just Band-Aids,” he says.
The group’s plans for special health courts were recently endorsed by US senate majority leader Bill Frist, who called for federal government to set up expert medical courts with limits on punitive damages and fixed damages to provide “rapid relief to truly injured patients (instead of trial lawyers) and hold negligent doctors accountable”.
What his critics say: Ralph Nader, of the Centre for Study of Responsive Law, once called the lawyer “an empty vessel” and argued that the “lawsuit crisis” did not exist and the number of legal actions had actually been falling steadily since 1996. Howard was “into psychiatry and not facts”. “He relies solely on this fear factor,” says Nader. “You know what a frivolous lawsuit is? It’s any lawsuit
An ex-president of the Association of Trial Lawyers of America (ATLA), Fred Baron was financial co-chairman for Edwards’ campaign. This hugely influential group was ranked as the sixth-biggest lobby group in the US, with 90 per cent of its contributions going into Democrat coffers.
It argues that the ‘lawsuit crisis’ is a myth. In response to a Newsweek article (‘Lawsuit Hell’) last month, the group laid out its stall. “Newsweek’s ‘onslaught’ of lawsuits simply hasn’t happened,” it argued. “Indeed, the ‘onslaught of litigation’ over the past 30 years decried in Newsweek is a relative term. In 1962, for instance, only about 300 civil rights lawsuits were filed in federal courts. In 2000 there were more than 40,000 – an onslaught, to be sure, but that’s because prior to 1964 racial discrimination was legal.”
According to the National Centre for State Courts, personal injury (PI) claims have actually dropped nationally by 8 per cent since 1975, and have been falling steadily in real numbers since 1996. The group pitches itself as put upon PI lawyers taking on the might of corporate America. “The insurance and tobacco industries have spent literally billions of dollars to demonise trial lawyers, but they can’t demonise what trial lawyers do, which is stand up for American families,” a spokesman said.
What its critics say: They are not so much ambulance-chasers but ‘Learjet lawyers’, referring to the group’s preferred choice of transport, paid for by its tobacco and asbestos claims run on ‘no win, no fees’.
The leading business-backed law reform lobbying group, based in Washington DC, recently put a price on the tort tax – a total of $205bn (£110.87bn), which works out as $721 (£389.9) per citizen. It reckons tort costs are 2.04 per cent of gross domestic product and increased 14.3 per cent in 2001, the highest percentage increase since 1986.
The association runs a ‘Judicial Hellholes’ project, identifying state trial court jurisdictions where it believes impartial justice is unavailable. It also dedicated a website to rubbishing John Edwards (www.edwardswatch.org) in the run-up to the election. The group claimed that Edwards was the only Democrat on the Senate Judiciary Committee absent from the debates on asbestos litigation reform. It also noted that he received $34,250 (£18,500) in campaign contributions from one of the leading asbestos litigation firms in the country, New York City-based Weitz & Luxenberg.
What its critics say: Unsurprisingly, the group speaks only for the interests of its corporate backers.