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A Message from the Director
Introduction
The
King of Torts
The
Law Expands
Public
Relations
State Government Relations
Suing
for the State
Justice
for Sale
Federal Government Relations
Expanding Liability
Deputizing
Trial Lawyers
Attacking
Arbitration
The
Anti-Federalist
Congress
Toy
Story
A
Trial-Lawyer Tax Break
Conclusion
Appendix
Other
Resources
Media
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PDF (3 mb) |
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ONLINE
PRESENTATION:
Watch and listen to Jim Copland present his new report
online and listen to special guests Senator Jeff
Sessions, Rep. Lamar Smith, Victor Schwartz, and Edwin
Meese give their remarks on the report.
PRESS RELEASE >>
PODCAST
Listen
to Howard Husock, Vice President for Policy Research
at the Manhattan Institute, interview Jim Copland on
Trial Lawyers Inc.: K Street
OP-EDS
Lawyers' Lies and
the Lying Lawyers Who Tell Them, James Copland Townhall.com, 02-23-10
Trial Lawyers Still Love Specter, James Copland,
Pittsburgh-Post-Gazette, 02-15-10
Trial
Lawyers: Democrats' Other Money Machine, James Copland,
Washington Examiner, February 10, 2010
How
the Plaintiffs Bar Bought the Senate, Wall Street
Journal, James Copland, 02-09-10
EDITORIAL
Why Liberals Are Lawyers' Puppets, The
Washington Times, 2-17-10
RADIO
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IN
THE PRESS
U.S. Sen. Richard Durbin
(D-Trial Lawyers), The Madison St. Clair Record, 2-21-10
Plaintiffs Bar Buys the Senate,
John Stossel, Fox Business, 2-9-10
Conservative
Group Rates Trial Bar as Most Influential, The
Hill, 2-10-10
Why
Not Tort Reform?, Waterbury Republican American,
2-10-10
The
Litigation Lobby, Revealed, Shopfloor.com,
2-10-10
Plaintiffs
Bar Buys the Senate John Stossel, Fox Business,
2-9-10
Manhattan
Institute Probes Lobbying Efforts of Lawyers, John
O'Brien, Legal Newsline, 2-9-10
Report
Criticizes Influence of Plaintiffs' Lawyers, David
Ingram, Blog of the Legal Times, 2-9-10
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INTRODUCTION
POLITICAL POWER
How Trial Lawyers, Inc. Became Washington’s Most Influential Business
Lobby
 The
late Fred Baron, one of the litigation industry’s most successful asbestos
lawyers, was never bashful about acknowledging trial lawyers’ political
influence. In 2002, in reaction to a recent Wall Street Journal editorial
claiming that “the plaintiffs bar is all but running the Senate,”
Baron quipped, “I really, strongly disagree with that. Particularly the
‘all but.’ ”[20]
A past president of Trial Lawyers, Inc.’s political wing—known when
he headed it as the Association of Trial Lawyers of America—Baron had personally
donated millions of dollars to political causes.[21] For
his friend and fellow trial lawyer John Edwards’s 2004 and 2008 runs for
national office, Baron directed fund-raising operations, lent the campaign his
private jet, and infamously paid to relocate the candidate’s mistress,
who was pregnant.[22]
Baron was but one of many heavy-hitting plaintiffs’ lawyers who have ponied
up big cash to political campaigns. Indeed, at the time Baron retired from his
old firm Baron & Budd, in 2002, there were seven trial-bar contributors
to federal campaigns that had given more than his firm: the industry’s
political action committee; three fellow Texas personal-injury firms, Williams
& Bailey, Nix, Patterson & Roach, and Provost Umphrey; and the law firms
of asbestos kingpins Ron Motley (who also led the states’ multibillion-dollar
litigation against tobacco companies), Peter Angelos (who now owns the Baltimore
Orioles), and the recently deceased John O’Quinn (who also made a fortune
on breast-implant suits).[23]
The Rise of the Plaintiffs’ Bar
Although the legal profession and the Anglo-American system of tort law long
predate the United States itself, an organized plaintiffs’ bar—and
the rise in political influence of trial lawyers like Fred Baron—are relatively
recent developments. As noted by legal historian John Fabian Witt, “For
the first century and a half of U.S. history, the plaintiffs’ lawyer barely
existed as a category.”[24] Until the late nineteenth
century, torts was not recognized as a discrete branch of law; the first American
treatise on the subject was not published until 1859.[25]
Early-American accident lawyers “shifted back and forth between representing
defendants and plaintiffs,” and “[t]hrough the first half of the twentieth
century, plaintiffs’ lawyers remained for the most part diffuse and unorganized.”[26]
However, amid and following the upheavals of the Industrial Revolution, reformers
during the Progressive era and the New Deal came to believe that the old common-law
tort system was ill equipped to handle proliferating workplace injuries and
thus promoted the establishment of a regulatory system. Borrowing from Germany,
American states began to enact workers’ compensation laws that handled
employees’ injury claims outside the tort system: “Between 1910 and
1921, forty-two states passed industrial injury legislation, replacing tort
law with an administrative system affording compensation for accidental injuries
arising on the job.”[27]
From among the lawyers who handled these new workers’ compensation claims
arose the trial-lawyer bar and its lobbying arm. In 1946, Sam Marcus, a Detroit
workers’-comp lawyer representing the Congress of Industrial Organizations,
met Sam Horovitz, a Boston employee-claims attorney who represented the American
Federation of Labor.[28] In August of that year, the two
formed the National Association of Claimants’ Compensation Attorneys (NACCA).
Initial membership was eleven, and Marcus was the group’s first president.
In 1949, NACCA began to take on its current form, when the nation’s most
prominent personal-injury lawyer, Melvin Belli (see box), persuaded the group
to admit all tort lawyers rather than merely those representing injured workers.[29]
THE KING OF TORTS
 If
Trial Lawyers, Inc. had a single founder, it would have to be San Francisco
personal-injury lawyer Melvin Belli, dubbed the “King of Torts”
by Life magazine in 1954.[44] Belli was “a
man of scarlet silk-lined suits, of multi-colored Rolls Royces, of courtroom
theatrics and Hollywood high-jinks.”[45] His
clients included the Rolling Stones, Lee Harvey Oswald killer Jack Ruby,
and Hollywood stars Mae West and Errol Flynn.[46]
Belli also wrote several books, including the three-volume treatise Modern
Trials, which earned him over $1 million in royalties.[47]
Other lawyers had reason to buy Belli’s book, which explained the
tactics he had used to revolutionize the world of tort law. Belli had
been the trial attorney in the famous 1944 case Escola v. Coca-Cola
Bottling Co.,[48] which laid the foundation for
strict liability—liability without fault—in product defect cases.
In the 1950s, Belli launched modern pharmaceutical litigation with his
successful case against a manufacturer of polio vaccines.[49]
A seminal law review article he wrote,[50] along
with his aggressive advocacy, helped increase substantially the amounts
awarded for “intangible” injuries like pain and suffering. And
to play upon jurors’ heartstrings and put them in a more generous
mood, he pioneered the use of “demonstrative evidence”—photographs
and props that depicted and dramatized his clients’ suffering.[51]
Many of Belli’s theatrics seem bold even today: in one case, he arranged
to have “an injured, 680-pound client [hoisted] through the courthouse
window,” and in another, he shocked a 1940s jury “by having
a client bare her chest to show scars from an injury. She then shed tears
that landed right on her scars.”[52]
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Although Horovitz initially opposed Belli’s entreaties, he soon embraced
the group’s expanded mission with gusto, and in 1949, he “took his
family on a three-month, 10,800-mile tour across the South and Southwest in
a silver aluminum Airstream trailer to establish local branches and chapters
of the NACCA.”[30] Dubbed the Silver Bullet Tour by
the trial lawyers, Horovitz’s mission was wildly successful, bringing hundreds,
and then thousands, of new recruits to the lawyer-lobby cause.[31]
Because the regulated world of workers’ compensation offered attorneys
far less upside than did the open and rapidly expanding world of tort law, the
NACCA soon found itself departing from its original purpose. “Within just
a few short years, the NACCA had become an organization dedicated not to the
improvement of the workmen’s compensation system, but to its rollback.
By the early 1950s, NACCA advocated the abolition of workmen’s compensation.”[32]
Membership in the lawyer lobby swelled, and in 1960, the organization changed
its name to the National Association of Claimants’ Counsel of America,
which better reflected its new mission. Four years later, the group adopted
the catchier-sounding American Trial Lawyers Association (ATLA), then switched
again in 1972 to a similar name, Association of Trial Lawyers of America.[33]
The government-relations arm of Trial Lawyers, Inc. would keep this moniker
for thirty-four years, before deciding in 2006 to disguise its mission by adopting
the innocuous-sounding American Association for Justice.[34]
THE LAW EXPANDS
Trial Lawyers, Inc. could never have grown into the big business it is
if the traditional legal rules limiting the scope of litigation had not
first been loosened. In 1944, pioneering trial lawyer Melvin Belli represented
Gladys Escola, a waitress who had suffered severe hand injuries when a
bottle of Coca-Cola exploded as she was putting it into a refrigerator.[53]
Under traditional doctrines, in order to establish liability, Belli would
have had to prove negligence on the part of the bottling company.[54]
However, the bottle’s pieces had been discarded, and he had no evidence
of error in the manufacturing process.[55]
Belli persuaded the California Supreme Court to discard the existing
legal standard and hold that a jury could deem the bottler negligent under
the doctrine of res ipsa loquitor (“the facts speak for themselves”),
permitting the court to infer and assign fault purely on the basis of
evidence of the explosion.[56] Escola ushered in
the era of modern product-liability law; Belli remarked, thirty years
later, “If there is one legal decision upon which Ralph Nader built,
this was it.”[57]
 The
Escola case is remembered less for its holding—few today would argue
that it is unreasonable to hold a manufacture liable for an exploding
soda bottle—than for its concurrence,[58] written
by Justice Roger Traynor, who had taught Belli at the University of California
at Berkeley’s Boalt Hall School of Law. Traynor argued that the court
should dispense with negligence altogether and instead embrace the doctrine
of “strict liability,” that is, “an absolute liability
when an article that [a manufacturer] has placed on the market, knowing
that it is to be used without inspection, proves to have a defect that
causes injury to human beings.”[59] Traynor
would enshrine strict liability in the law of California in the 1963 case
Greenman v. Yuba Power Products,[60] which,
according to a 1996 poll of the membership of the Association of Trial
Lawyers of America, was the most significant change made to tort law in
the previous fifty years.[61]
In 1965, a scant two years after Yuba Power was decided, William
Prosser, a University of California, Hastings College of the Law professor,
would incorporate Yuba Power’s strict-liability standard into
the American Law Institute’s Second Restatement of Torts,[62]
which greatly influences state supreme courts around the country. (Prosser
had argued for strict product liability in his 1941 torts treatise.[63])
The Second Restatement also legitimized other theories of liability that
have come to dominate product-liability litigation: “design defects”
(which asks juries to play scientist and determine whether an alternative
product design would have reduced or avoided injuries) and “failure
to warn” (which asks juries to determine whether products’ warning
labels—which have, understandably, proliferated as the result of
application of the legal rule—are sufficient to notify customers
of product risks).[64]
In parallel with this expansion of the substantive law of tort, the procedural
law went through a major overhaul, and this also facilitated a surge in
litigation. Under both the common law and various state codes, filing
a lawsuit required pleading a case with particularity—that is, meeting
certain thresholds before a legal claim would be allowed to proceed.[65]
These pleading rules were “criticized for overemphasizing form over
substance,”[66] and when Yale Law School dean
Charles E. Clark set about drafting the first Federal Rules of Civil Procedure
during the New Deal, under authority delegated to the judicial branch
by the Rules Enabling Act,[67] he effectively gutted
the old rules.
Code pleading had controlled the volume of litigation not only by requiring
plaintiffs to plead facts with particularity but by requiring them to
give notice to a defendant that a suit had been filed, to narrow the legal
issues, and to exclude meritless claims.[68] The
new 1938 Federal Rules, however, dispensed with all such requirements
save notice.[69] Clark’s vision was to allow
virtually any claim to have its day in court—where the truth of the
matter would be determined—but it failed to anticipate the economic
realities that the new system would create. The Federal Rules’ new,
open-ended discovery process enabled wildly expensive fishing expeditions
and—in combination with the “American rule” that each side
in litigation must bear its own costs[70]—encouraged
shakedown suits and other forms of what was, in effect, legal extortion.
Later procedural changes, including a shift to “opt out” class
actions in a 1966 amendment of the Federal Rules,[71]
gave even more power to plaintiffs and the lawyers who represented them.
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It’s All about the Money
When ATLA first set up the Attorneys Congressional Campaign Trust, in 1979,
it was a relatively small player, giving only $400,000 to campaigns that year.[35]
It quickly became a much more powerful force: since 1990, the group’s PAC
contributions to federal campaigns have exceeded $33 million, and lawyers altogether,
excluding lobbyists, have contributed $1.05 billion to federal candidates.[36]
Not only have lawyers’ campaign contributions exceeded those of every other
industry or profession over the last two decades; they have exceeded those of
every other one in each two-year political cycle.[37] Trial
Lawyers, Inc.’s ability to keep tort reform off the table in the recent
discussions over health-care reform is not surprising in light of the fact that
lawyers’ congressional-campaign contributions in the last election cycle
substantially exceeded the combined total of political donations from
doctors, pharmaceutical companies, HMOs, hospitals, and nursing homes.[38]
As Fred Baron suggested, the plaintiffs’ bar has a stranglehold over the
U.S. Senate. Two of the top five private contributors to the Democratic Senatorial
Campaign Committee in the last campaign were plaintiffs’ law firms—New
York asbestos and class action giant Weitz & Luxenberg ($505,400) and Illinois
asbestos powerhouse Cooney & Conway ($326,500).[39]
Over the last five years, Weitz & Luxenberg has also been the third-largest
contributor to Senate majority leader Harry Reid (D-Nev.), who counts plaintiffs’
firms as four of his top seven contributors.[40] The top
two, and seven of the top twenty, donors to Senate majority whip Dick Durbin
(D-Ill.) are plaintiffs’ law firms, including Cooney & Conway and fellow
in-state firms Simmons Cooper (his largest donor), Korein Tillery (his second-largest
donor), Clifford Law Offices, Corboy & Demetrio, and Power, Roger &
Smith—all featured in Trial Lawyers, Inc.: Illinois.[41]
In total, Trial Lawyers, Inc. dwarfs all other industries in contributing to
the Senate leadership.
 Since
tort law exists primarily at the state level, Trial Lawyers, Inc. has of necessity
been a force in state elections as well, giving almost $725 million over just
the past decade.[42] The trial bar works feverishly to
control state supreme courts, and spending on many of these races, in states
where they are held, has exploded since business began fighting back (see box
"Justice
for Sale"). Trial lawyers also contribute hefty sums to state legislators,
attorneys general, and other statewide officials. In some cases, leaders in
part-time state legislatures are themselves plaintiffs’ lawyers or
Lawyers’ campaign contributions exceeded those of every other
industry over the last two decades.
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affiliated with personal-injury firms. In New York, for example, State Assembly
Speaker Sheldon Silver and State Senate Democratic Conference Leader John Sampson
each have “of counsel” relationships with major asbestos- and personal-injury-litigation
firms, Weitz & Lexenberg and Belluck & Fox, respectively.[43]
The lititgation industry’s massive contributions and web of financial ties
to state political leaders have enabled it not only to block tort-reform efforts
but also, increasingly, to craft an affirmative state-level agenda to expand
litigation opportunities.
<<previous section | next section>>
20. John Fund, Have You Registered to Sue?, Wall St. J.,
Nov. 6, 2002, available at http://www.opinionjournal.com/diary/?id=110002581.
21. See Jason Embry, Baron’s Rebuilding Efforts Already Showing
Results, Austin Amer.-Statesman, Nov. 12, 2006.
22. See Brian C. Mooney, Candidates Got Around with a Little Help
From Their Friends, Boston Globe, Dec. 18, 2007; Gromer Jeffers, Jr., Dallas
Lawyer Fred Baron Paid for Edwards’ Mistress To Relocate, Dallas Morning
News, Aug. 9, 2008.
23. See Center for Responsive Politics, http://www.opensecrets.org/industries/contrib.php?ind=K01&cycle=2002
(last visited Jan. 13, 2010).
24. John Fabian Witt, The Political Economy of Pain 20, Apr. 2, 2008, http://commongood.org/assets/attachments/Witt.pdf.
25. See G. Edward White, Tort Law in America: An Intellectual History
3 (1980).
26. See Witt, supra note 24, at 20-21.
27. Robert L. Rabin, Some Reflections on the Process of Tort Reform,
in Perspectives on Tort Law 284 (Rabin ed., 3d ed. 1990).
28. See American Association for Justice, An Expanded History of ATLA/AAJ,
http://www.justice.org/cps/rde/xchg/justice/hs.xsl/2079.htm
(last visited Jan. 13, 2010).
29. See id.
30. John Fabian Witt, Patriots and Cosmopolitans: Hidden Histories of American
Law 241 (2007).
31. See id.
32. Witt, supra note 24, at 23.
33. John Fabian Witt, First, Rename All the Lawyers, N.Y. Times, October
24, 2006.
34. See Kamen, supra note 10.
35. See Neil Hrab, Association of Trial Lawyers of America: How It Works
with Ralph Nader Against Tort Reform 2 (Jan. 2003), http://www.heartland.org/custom/semod_policybot/pdf/11566.pdf.
36. See Center for Responsive Politics, http://www.opensecrets.org/industries/indus.php?ind=K01
(last visited Jan. 13, 2010). Data include contributions from lawyers in defense-oriented
and generalist firms, not simply those of plaintiffs’ lawyers. Thus, contributions
from what we call Trial Lawyers, Inc. constitute only a portion of these dollars.
However, even if plaintiffs’ lawyers give only half of all such contributions
(according to Towers Perrin, a consulting firm, plaintiffs’ lawyers collect
about 57 percent of litigation dollars that go to attorneys), such contributions
would generally exceed those from most other industries. In the last political
cycle, lawyers gave more than twice as much to federal campaigns as any
other industry save securities/investment (and lawyers gave 97 percent more
than that industry). See id. at http://www.opensecrets.org/industries/mems.php?party=A&cycle=2008
(last visited Jan. 13, 2010).
There is good reason to believe that bundled contributions from the plaintiffs’
bar well exceed those from the defense bar. Big corporate-defense firms do show
up on contributions tables, but that is primarily because of their size. The
average lawyer at the giant defense firm DLA Piper has contributed $118 to federal
campaigns, and at peer firms K&L Gates and Hogan & Hartson it has been
$232 and $264, respectively; by comparison, the average lawyer at the plaintiffs’
firm Simmons Cooper gave $4,231, at Girardi & Keese $7,917, and at Clifford
Law Offices $14,175. See id. at http://www.opensecrets.org/industries/contrib.php?cycle=2010&ind=K01
(last visited Jan. 13, 2010) (denominators—number of attorneys—taken
from firms’ websites).
Moreover, the defense bar and plaintiffs’ bar have congruent economic interests
when it comes to litigation: loose substantive liability rules, loose pleading
standards, and open-ended discovery rules increase the defense bar’s profits.
While defense lawyers are less likely to lobby aggressively against tort-reform
legislation—out of a desire not to antagonize their clients—very few
lawyers, whether representing plaintiffs or defendants, advocate litigation
reform.
37. See id. at http://www.opensecrets.org/industries/indus.php?ind=K01
(last visited Jan. 13, 2010). Figures for lawyers include all non-lobbyist contributions
from lawyers and law firms. See also supra note
13.
38. See id. at http://www.opensecrets.org/industries/memsphp?party=A&cycle=2008
(last visited Jan. 13, 2010).
39. See id. at http://www.opensecrets.org/parties/contribphp?cmte=DSCC&cycle=2008
(last visited Jan. 13, 2010). A third top-five contributor, Fortress Investment
Group, is a New York–based financial company that employed plaintiffs’
lawyer John Edwards. The other two top-five contributors are financial giants
Goldman Sachs and JPMorgan Chase.
40. See id. at http://www.opensecrets.org/politicians/contrib.php?cycle=2010&cid=N00009922&type=C&mem=
(last visited Jan. 13, 2010). The other large plaintiffs’ bar contributors
to Sen. Reid have been the Law Offices of Peter G. Angelos, Simmons Cooper LLC,
and Girardi & Keese.
41. See id. at http://www.opensecrets.org/politicians/contrib.php?cycle=2010&cid=N00004981&type=C&mem=
(last visited Jan. 13, 2010). “Retired persons” have given more collectively
to Sen. Durbin than has Korein Tillery, though not more than has Simmons Cooper.
42. See National Institute on Money in State Politics, http://www.followthemoney.org/database/IndustryTotals.phtml?f=0&s=0&b%5B%5D=K1000
(last visited Jan. 13, 2010).
43. See Brendan Scott, Sampson Playing a Law-Firm Shel Game, N.Y.
Post, Jan. 4, 2010.
44. See Robert Wallace, The King of Torts, Life, Oct. 18, 1954,
at 71.
45. See Witt, supra note 24, at 24–25.
46. See Jim Herron Zamora, “King of Torts” Belli Dead at
88, S.F. Chron., July 10, 1996.
47. See Melvin M. Belli, Modern Trials (1954); see also Zamora,
supra note 46.
48. 24 Cal.2d 453 (1944).
49. See generally Paul A. Offit, The Cutter Incident: How America’s
First Polio Vaccine Led to The Growing Vaccine Crisis (2005).
50. See Melvin M. Belli, The Adequate Award, 39 Cal. L. Rev. 1
(1951).
51. See Witt, supra note 24, at 30.
52. See Zamora, supra note 46.
53. See Escola v. Coca-Cola Bottling Co., 24 Cal.2d 453, 456 (1944).
54. See id. at 459.
55. See id. at 456.
56. The doctrine of res ipsa loquitor dates to the 1863 British case
Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299 (holding that evidence
that a barrel of flour had dropped from a store window onto a passerby’s
head was sufficient on its face to permit an inference of negligence).
57. See Offit, supra note 49, at 159.
58. Escola, 24 Cal. 2d at 461-68 (Traynor, J., concurring).
59. Id. at 461.
60. Greenman v. Yuba Power Products, Inc. 59 Cal. 2d 57 (1963).
61. Jeffrey Robert White, Top 10 in Torts: Evolution in the Common Law,
Trial, July 1996, at 50-53.
62. See Restatement (Second) of Torts § 402A (1965).
63. See William L. Prosser, Prosser on Torts, 688-89 (1941).
64. See Restatement, supra note 62, at § 402A & comment j (“In
order to prevent the product from being unreasonably dangerous, the seller may
be required to give directions or warning, on the container, as to its use.”).
65. See Charles Alan Wright & Mary Kay Kane, Law of Federal Courts
471 (6th ed. 2002); see David M. Roberts, Fact Pleading, Notice Pleading,
and Standing, 65 Cornell L. Rev. 390, 395–96 (1980).
66. See Christopher M. Fairman, The Myth of Notice Pleading, 45
Arizona L. Rev. 987, 990 (2003).
67. Pub.L. 73-415, 48 Stat. 1064 (1934).
68. See 5 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1202, at 68 (2d ed. 1990).
69. See Fed. R. Civ. P. 8(a)(2).
70. Unlike in most other countries in the world, the longstanding American rule
has been that each party normally must pay its own fees and expenses. See,
e.g., Arcambel v. Wiseman, 3 U.S. (3. Dall.) 306 (1796). For a discussion
of the policy relevance of this rule, and how to incorporate loser-pays principles
into American law, see Marie Gryphon, Greater Justice, Lower Cost: How a
“Loser Pays” Rule Would Improve the American Legal System, Manhattan
Inst. Civ. J. Rep. No. 36 (2008), available at http://www.manhattan-institute.org/pdf/cjr_11.pdf.
71. See Fed. R. Civ. P. 23(c)(3)(B). By shifting from an “opt in”
to an “opt out” rule, the advisory committee effectively created modern
class action litigation. Because class members are included in such litigation
unless they request exclusion, these types of cases are essentially lawyer-driven.
Securities class action attorney Bill Lerach once boasted, “I have the
greatest practice of law in the world. I have no clients.” See Neil
Weinberg, Shakedown Street, Forbes.com, Feb. 11, 2008, http://www.forbes.com/2008/02/11/lerach-milberg-weiss-biz-cz_nw_0211lerach.html.
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