May 29, 2002

May 29, 2002 | Commentary on Legal Issues

The Urgent Need for Civil Justice Reform

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 states.

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 million.

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 system.

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" suits.

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 future.

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 representatives.

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.

Edwin 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.

About the Author

Paul Rosenzweig
Edwin Meese III Center for Legal and Judicial Studies

Edwin Meese III Ronald Reagan Distinguished Fellow Emeritus
Edwin Meese III Center for Legal and Judicial Studies

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