With new state laws and federal courts cracking down on many types of abusive lawsuits, the plaintiffs’ bar — a perennial source of campaign cash for Democrats — is on the hunt for new ways to trawl for dollars in the courthouse.
The trial lawyers’ scramble for cash makes itself visible to the public in all of the usual places. Low-budget television stations carry ambulance-chasing ads hunting for anyone who might have contracted mesothelioma without noticing, or who thinks they might have been harmed by a birth-control device or piece of medical equipment first released four or five years ago. Billboards across America carry toll-free numbers for those who feel they have been wronged to call and sue.
But the most skilled trial lawyers have bigger fish to fry, and they tend to fry them behind closed doors. This sometimes includes the legal extortion of settlements from corporations through shareholder lawsuits. It also frequently includes working with government officials to cut themselves a special deal.
Over the last two decades, it has become increasingly common for governments — especially state governments — to deputize private trial lawyers and allow them to sue private actors on the government’s behalf. If they win, the lawyers get a cut of the settlement, known as a contingency fee.
The New York Times reported on this phenomenon as recently as December, noting that these trial lawyers frequently look for well-funded targets to sue and then pitch state officials to give them the case.
Usually, a few campaign contributions are thrown into the mix as well, so that this arrangement is sometimes called “pay to sue.” The practice invites more low-percentage, fishing-expedition-type lawsuits against job creators within a state.
Various states have tried to clean up this unsavory system. Virginia’s state legislature recently passed a bill to at least add some transparency to the practice. State Sen. Mark Obenshain, R, its sponsor, told the Washington Examiner on Monday that his bill was not an effort to end such arrangements altogether, but rather to cap attorneys’ compensation, and require disclosure of what the state spends on private lawyers. Most importantly, it would have also required Virginia’s attorney general to produce a justification in writing for why outside counsel must be employed in each case.
“It just says that if you’re going to do it, explain it,” said Obenshain.
This is a very simple, common-sense reform. If anything, it doesn’t go far enough. But on March 27, Gov. Terry McAuliffe, D, vetoed it.
Under an executive order still in force from the Bush era, the federal government currently bars employment of private counsel on a contingency basis. There is no real reason for Virginia — whether its governor is a Republican or a Democrat — to enter such arrangements if even the feds have sworn them off. There is even less reason to insist on secrecy in such arrangements, and this makes McAuliffe’s veto all the more appalling.
