May 29, 2002 | Commentary on Legal Issues
Think the venture capitalists on Wall Street are good at raising
money? They've got nothing on the lawyers who have been cleaning up
on the lawsuits the tobacco companies recently settled with the
The agreements will provide some of the plaintiffs' attorneys
(between 200 and 300 of them) with payments totaling $500 million
per year almost in perpetuity. For some, this works out to a
payment of more than $100,000 per hour worked.
One lawyer, Richard Scruggs of Mississippi, was awarded a total
of $847.8 million for his interest in claims in Mississippi, Texas
and Florida alone. Another, Ronald Motley, was awarded $304 million
as his share of Mississippi's $1.4 billion settlement; his firm's
total take is likely to exceed $3 billion.
In New Jersey, six lawyers who were politically connected to the
attorney general were retained to represent the state, even though
they had no prior experience with mass-tort cases. Although they
contributed almost nothing to the settlement, they will share $350
When former Texas Attorney General Dan Morales announced that
tort lawyers in his state would receive $2.4 billion of the $16
billion Texas was awarded, Professor Geoffrey C. Hazard, chief
draftsman of the American Bar Association's Rules of Professional
Conduct, said the deal "amount[ed] to an abandonment by [Attorney]
General Morales of his responsibilities as attorney for the State
of Texas." Unfortunately, far too few in the legal profession have
followed Professor Hazard's lead in questioning these exorbitant
fees and the manner in which they were distributed.
But these outrageously excessive fees are worse than unethical.
They represent a grave danger to the American political
Why? Because they transfer the responsibility for determining
matters of public policy from Congress and the executive branch --
the elected representatives of the people -- to a few powerful
trial lawyers. These lawyers, with the complicity of creative
judges in a few states, routinely create new rights and obligations
where none had existed before. The tobacco cases are merely the
blueprint for a strategy of systematically transferring political
power to a select few.
The next set of targets for predatory lawsuits has been
identified: With the assistance of state courts, tort lawyers next
intend to reform the health-care system in America. And beyond the
health-care system looms the specter of other "creative"
For example, Peter Angelos, the tort lawyer who sought a $1
billion fee from Maryland for his tobacco work (but settled for
$125 million), is now suing cell-phone manufacturers. Not because
cell phones have been shown to cause injury, mind you, but because
the plaintiffs he represents supposedly fear that there might be
some medical consequences, and they want cell-phone manufacturers
to pay the costs of monitoring their health for the foreseeable
Ronald Motley, meanwhile, has boasted of his intention to "bring
the entire lead paint industry to its knees within three years."
Other lawyers have the fast-food industry in their sights. With
these cases as a model, it seems we'll soon have trial lawyers
(along with their allies on the courts) dictating policy on issues
of vital concern to all Americans -- effectively disenfranchising
voters by eliminating the power of their elected
Money warps the political system in a second, even more palpable
way. The "big five" tobacco lawyers in Texas contributed more than
$1.7 million directly to the Texas Democratic Party in 1998, and an
additional $1.3 million indirectly through national Democratic
sources. Through its PAC, the American Trial Lawyers Association
gave $2.4 million to federal candidates in 1998, $2.1 million of it
to Democrats -- an amount that severely understates the problem
since it doesn't count individual giving. (In 1998, Angelos gave
$305,000 to various Democratic Party entities.)
In short, if the trial lawyers can't change America through the
courts, they are seeking to buy the Congress they need to enact the
agendas they support.
And every American, conservative or liberal, should fear the
prospect. Because if we don't fix the civil justice system, we risk
all that is precious in the American system -- democracy and
self-government most of all.
Meese, a former U.S. attorney general, is chairman of the
Center for Legal and Judicial Studies at The Heritage Foundation,
where Paul Rosenzweig is a senior legal research fellow.
Distributed nationally on the Knight-Ridder Tribune wire