PUBLIC RELATIONS

ATTORNEY IMAGE MAKERS

How the Litigation Industry Works Through the Academy,
Media, and Surrogate Groups to Burnish Its Perception

The litigation industry realizes that it has a popularity problem, as evidenced by its recent decision to change the name of its top industry association from the Association of Trial Lawyers of America (ATLA) to the American Association for Justice[72]—a moniker less suggestive of a lobbying group for plaintiffs’ lawyers than of the Justice League of America, the team of superheroes in the 1970s Saturday-morning Super Friends cartoons.[73] Lawyers will never be popular—doubts about barristers predate the American republic[74]—but the trial bar has much to gain from obfuscating its avaricious business model and perpetuating its image as a loose cadre of individual advocates who simply hang their shingles and stand up for the little guy against corporate predators.

To meet its public-relations aims, Trial Lawyers, Inc. supplements its government-relations efforts with a strong web of ties to the academy, media, and various “consumer” groups. By encouraging law-review articles and amicus briefs; news stories, movies, and television programs; and studies and statements from purportedly independent nonprofit organizations, the trial bar works to reinforce its mythical identity—and thus head off and disarm popular opposition.

Ivory-Tower Advocates

As the organized plaintiffs’ bar developed, its leader, Melvin Belli, befriended septuagenarian law professor Roscoe Pound, former dean of Harvard Law School.[75] Pound later penned a glowing introduction to Belli’s best-selling book Modern Trials.[76] An early critic of the common law, Pound in his later years had become a fierce opponent of the New Deal, and he came to view the common law of tort as a substitute for the bureaucratic state.[77] Pound thus became a leading advocate for the plaintiffs’ bar and, by doing so, gave it an air of academic legitimacy. The Harvard professor’s legacy continues to aid the litigation industry: the Pound Civil Justice Institute, a think tank founded by the plaintiffs’ bar in 1956, conducts seminars, including some for judges, and publishes papers to promote the interests of Trial Lawyers, Inc.[78]

The tort bar continues to cultivate relationships with academics who are willing to speak on its behalf. Drawing upon their august institutions’ reputations for seriousness and their own for independence, many of them profit handsomely from their ties to the trial bar. Law professors can earn hefty sums as “expert” witnesses by giving an academic seal of approval to mass-litigation settlements, dodgy fee arrangements, and questionable theories of injury.

Law professors’ work is regularly cited in support of pro-litigation positions, notwithstanding conflicts of interest. Consider Jones v. Harris Associates,[79] a case for which the U.S. Supreme Court heard oral arguments on November 2, 2009. In Jones, the trial bar is seeking greater latitude to sue mutual funds over their management fees. A group of law professors signing a friend-of-the-court brief on behalf of the plaintiffs cited the work of three other professors who had already served as expert witnesses in the same case.[80] Such practices are often undisclosed; the same trial bar that attacks any study even partly funded by industry tries to obscure its own role in enriching its ivory-tower advocates.

An Unsuspecting Media

Trial lawyers have also aggressively courted the media. The little-guy-against-corporate-evildoer makes for good theater, so the trial lawyers’ mythology finds its way regularly into the popular media, for instance in the books and movies written by John Grisham and in television shows produced by David E. Kelly.[81] Grisham is himself a former plaintiffs’ lawyer who makes no secret of his friendship with his fellow Mississippian Dickie Scruggs,[82] a leader of Trial Lawyers, Inc. before he pleaded guilty to conspiring to bribe a judge.[83]

Trial lawyers also work the news media to stir up public fear, primarily by funneling victim stories to consumer reporters. News analyst John Stossel, who earlier won nineteen Emmy Awards as a consumer reporter, notes that trial lawyers are the reporter’s “perfect source”:

This partnership between reporters and trial lawyers is not a good thing, but it’s hard for us reporters to resist, because trial lawyers are a perfect source. They do most of the work for us. We don’t need to make phone calls to search for victims; the lawyers identify the most telegenic of them, the people whose stories make you cry, and they’ll bring them right to our office.

Then they identify the “bad guy” for us. We don’t need to do much original investigating, since the lawyers use their subpoena power to force companies to turn over just about every record they’ve ever produced. The lawyers usually find some dirt (bet they’d find dirt on you if they got all your papers) and hand it to us. We double-check it, but we’re following the lawyers’ script.[84]

Consumer Group Surrogates

Trial Lawyers, Inc. often works with allied groups to cultivate an air of legitimacy in promoting its agenda to the press and general public. Chief among these are the Naderite consumer groups that purport to protect the public from alleged corporate abuses. The innocuous-sounding Citizens for Justice and Democracy, headed by Nader disciple Joanne Doroshow, exists exclusively to fight efforts at reforming the civil justice system.[85] The group produces scores of position papers and “studies” designed to confuse the facts about the civil justice system; and through a subsidiary organization, Americans for Insurance Reform,[86] it makes a practice of blaming the high price of medical-malpractice and other liability insurance on the greed and mismanagement of insurance companies rather than on the underlying litigation being insured against.

Other Naderite organizations—such as the Center for the Study of Responsive Law,[87] the Public Interest Research Group,[88] and Public Citizen[89]—are less single-minded in their support of the trial bar, though their public positions significantly overlap. Public Citizen, for example, pushes Trial Lawyers, Inc.’s agenda directly, through its Litigation Group, which fights preemption of tort claims, arbitration clauses, and other issues adverse to the interests of the plaintiffs’ bar;[90] and indirectly, through its Health Research Group, which publicly attacks the safety of hundreds of drugs and medical devices that are the bread and butter of the mass-tort bar.[91]

A Harvard-trained lawyer, Ralph Nader rose to fame in 1965, when the then-thirty-one-year-old published the book Unsafe at Any Speed,[92] an attack on the automobile industry and its products. Nader focused his criticism particularly on the Chevrolet Corvair, an economy car that drew upon design features of European car models and thus differed from its American competitors. Although some of Nader’s safety criticisms doubtless had merit, the federal National Highway Transportation and Safety Administration (NHTSA)—founded by Congress in 1966, partially in response to Nader’s book—ultimately determined that “the 1960–63 Corvair compares favorably with contemporary vehicles used in the tests” and that “the handling and stability performance of the 1960–63 Corvair does not result in an abnormal potential for loss of control or rollover, and it is at least as good as the performance of some contemporary vehicles both foreign and domestic.”[93] Unfortunately, lay juries are unable to engage in the sort of comparative and cost-benefit analysis employed by the NHTSA. Nader’s attacks on the auto industry, in combination with substantive shifts in legal doctrine, helped generate waves of automobile “design defect” cases. Before long, the public was left with the impression that “all economy cars are inherently defective for tort purposes.”[94]

Nader and the organizations he founded were of great use to the litigation industry, which in turn made them recipients of its largesse. In a 1999 interview, Joan Claybrook, president of Public Citizen at the time, admitted that her group received “about $200,000” per year from plaintiffs’ attorneys.[95] Because the contributions it receives are not disclosed in public filings, it is impossible to determine whether other trial-lawyer money is funneled indirectly into its coffers. The comments of some trial lawyers would suggest that the sum Claybrook mentions is just part of the story: prominent California plaintiffs’ attorney Herb Hafif has said that the trial bar supported Nader “overtly, covertly, in every way possible,” and the late Texas tort king Pat Maloney noted that the litigation industry supported Nader’s efforts “for decades,” contributing “a huge percentage of what he raises.”[96]

Although there is no reason to suspect that “Saint Ralph”[97] and his organizational offspring operate from venal motives—many of “Nader’s Raiders” and their successors are true believers in their cause—his crusades seem to have provided him with a good living: the financial disclosure forms that he released during his 2004 presidential campaign showed him as having over $4 million in net liquid financial assets.[98]

So appreciative of consumer groups is the plaintiffs’ bar that in 1986 ATLA attorneys set up their own charitable trust—the Civil Justice Foundation—to support those that are dedicated to furthering the trial bar’s interests.[99] As for Nader, he plans to build an American Museum of Tort Law in his hometown.[100]

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72. See Kamen, supra note 10.
73. The Justice League of America first appeared in DC Comics in 1960. See The Comic Book Database, http://comicbookdb.com/issue.php?ID=11725 (last visited Jan. 13, 2010). The fictional group starred for several seasons beginning in 1973 on a Saturday-morning television cartoon, Super Friends. See The Internet Movie Database, http://www.imdb.com/title/tt0069641/ (last visited Jan. 13, 2010).
74. See, e.g., Jonathan Rose, Medieval Attitudes Toward the Legal Profession: The Past as Prologue, 28 Stetson L. Rev. 345 (1998).
75. See Witt, supra note 30, at 246-52.
76. See Belli, supra note 47.
77. See Witt, supra note 30, at 252-58.
78. See Pound Civil Justice Institute Home Page, http://www.roscoepound.org/about.aspx (last visited Jan. 13, 2010).
79. 527 F.3d 627 (7th Cir. 2008), cert. granted, 129 S. Ct. 1579 (March 9, 2009) (No. 08-586).
80. See Brief of Law and Finance Amici Curiae in Support of Respondent at 5 n.4, Jones v. Harris Associates, 527 F.3d 627 (7th Cir. 2008), cert. granted, 129 S. Ct. 1579 (Mar. 9, 2009) (No. 08-586).
81. Grisham’s books have often developed themes of small-scale crusading lawyers taking on big corporations. See, e.g., John Grisham, The Rainmaker (1995); Grisham, The Runway Jury (1996). But see Grisham, The King of Torts (2003). Kelly’s television shows, such as Ally McBeal, The Practice, and Boston Legal have often reinforced these themes.
82. See, e.g., Posting of Peter Lattman to WSJ Law Blog, http://blogs.wsj.com/law/2007/12/03/the-dickie-scruggs-case-a-qa/ (Dec. 3, 2007, 20:45 EST).
83. See Ashby Jones & Paulo Prada, Richard Scruggs Pleads Guilty, Wall St. J., Mar. 15, 2008.
84. John Stossel, Give Me a Break: How I Exposed Hucksters, Cheats, and Scam Artists and Became the Scourge of the Liberal Media 158 (2004).
85. See Center for Justice & Democracy Web Page, http://www.centerjd.org/about.php (last visited Jan. 13, 2010).
86. See Americans for Insurance Reform Web Page, http://www.insurance-reform.org/about/index.html (last visited Jan. 13, 2010).
87. See Center for the Study of Responsive Law Web Page, http://www.csrl.org/ (last visited Jan. 13, 2010).
88. See U.S. PIRG Web Page, http://www.uspirg.org/about-us (last visited Jan. 13, 2010).
89. See Public Citizen Web Page, http://www.citizen.org/about/ (last visited Jan. 13, 2010).
90. See Public Citizen Litigation Group Web Page, http://www.citizen.org/litigation/index.cfm (last visited Jan. 13, 2010).
91. See Public Citizen Health Research Group Web Page, http://www.citizen.org/hrg//drugs/index.cfm (last visited Jan. 13, 2010).
92. Ralph Nader, Unsafe at Any Speed (1965).
93. See Bob Helt, Government Tests Prove the Corvair Does Not Have a Handling or Stability Problem, http://www.corvaircorsa.com/handling01.html (last visited Jan. 13, 2010).
94. Peter W. Huber, Liability: The Legal Revolution and Its Consequences 42 (1988).
95. See Hrab, supra note 35, at 4.
96. Peter Brimelow & Leslie Spencer, The Plaintiff Attorneys’ Great Honey Rush, Forbes, Oct 16, 1989.
97. Michael Kinsley coined the term “Saint Ralph” in reference to Nader in a December 6, 1985, article in The New Republic.
98. See Center for Responsive Politics, http://www.opensecrets.org/pfds/pfd2003/N00000086_2003.pdf.
99. See Civil Justice Foundation Web Page, http://civiljusticefoundation.org/aboutus.html (last visited Jan. 13, 2010).
100. See Laura Longhine, Display Cases, Legal Aff., Nov.-Dec. 2005, available at http://www.legalaffairs.org/issues/November-December-2005/scene_longhine_novdec05.msp.