Judging by recent headlines, the trial-lawyer lobby in Washington should be deep in bunkers, fighting a defensive action. High-profile class-action plaintiffs’ lawyers such as Dickie Scruggs, Bill Lerach and Melvyn Weiss all have been convicted for various criminal offenses, and a federal judge unearthed major fraud among claimants in asbestosis lawsuits.
But the U.S. Chamber of Commerce has found the bunkers empty and the trial bar more aggressive than ever. The chamber sees the trial bar as having been reinvigorated. According to the Chamber’s Institute for Legal Reform, special provisions that would benefit plaintiffs’ attorneys are proliferating in Congress. Hence the ILR’s new Web page (reproduced here for illustration) lists 48 different pieces of legislation that ILR says are trial-lawyer specials. In most cases the American Association of Justice, formerly the America Trial Lawyer Association, has reported direct lobbying on the bills; in a few cases, subcontractors of AAJ have done so.
“I think [trial lawyers] are definitely playing more offense in this Congress than in past years,” said ILR President Lisa Rickard. “It’s clear there is a concerted strategy to look for avenues to pass incremental reforms to expand liability. And they are often doing it in a way that is sort of behind the scenes and stuck into pieces of legislation you wouldn’t ordinarily expect to see liability legislation in.”
The Examiner tried repeatedly to solicit AAJ comment on whether it is more active now than in past Congresses. Press secretary
Amaya Smith sent this e-mail response: “We are going to decline to comment on this story. Thanks for your call.”
Plaintiff-friendly language is clearly evident in a host of bills introduced in the past two years. Some trial-bar disputes have played out in public, such as the attempt to deny immunity protections to communications companies that aided in foreign intelligence/surveillance efforts. Many more are “stealthy” (as Rickard put it), such as the attempt to amend something called the False Claims Act (see accompanying story) and the attempt to use the bill reauthorizing the Coast Guard to make it easier to file class-action suits against cruise-ship companies.
One provision in a much larger tax bill would let trial lawyers deduct certain expenses up front, at an estimated cost to the federal Treasury of $1.6 billion. Another would greatly expand opportunities for asbestos-based lawsuits, despite the recent scandal about thousands of earlier false claims for asbestosis.
Another bill would broaden the definition of “disability,” increasing the opportunities to sue for denial of disability benefits or privileges to cover “any [emphasis added] physiological disorder or condition” or “any … emotional or mental illness.” A “disability” could also be claimed merely for “being perceived or treated as having a physical or mental impairment whether or not the individual has an impairment.” In other words, people could sue for disability protections even if they are not actually disabled.
The chamber’s new chart illustrates what it considers to be evidence of AAJ’s new aggressiveness, in great detail.
Rep. Lamar Smith of Texas, the ranking Republican on the House Judiciary Committee, said the flurry of activity on Capitol Hill amounts to “partisan steps to promote the efforts of trial lawyers — one of the Democrat party’s biggest financial contributors. … By pushing legislation to benefit trial lawyers, the Democratic leadership encourages frivolous lawsuits that bankrupt small-business owners and force innocent Americans to absorb high legal costs.”
The record shows a strong correlation between AAJ campaign donations and sponsorship of the bills. Of the 55 lead sponsors of the 45 bills, The Examiner was able to track (some of them the same lawmaker but on different bills), 39 had received substantial AAJ donations since the 1998 cycle, for a grand total of nearly $1.9 million in contributions.
To cite one example, a bill to expand lawsuit opportunities “for commercial maritime accidents” was sponsored by Reps. Lloyd Doggett of Texas and John Lewis of Georgia, who respectively have received $66,250 and $62,000 from AAJ.
Not all of the sponsors were Democrats. Republican Sens. Lindsey Graham of South Carolina, Chuck Grassley of Iowa, Mel Martinez of Florida and Arlen Specter of Pennsylvania also filed bills friendly to the trial lawyers, although only Graham received AAJ money, $41,500.
Some of the four dozen bills undoubtedly have merit. But the volume of activity strongly suggests that plenty of benefits are tucked away for the trial lawyers.
“It’s not even a close question: It is really unprecedented what [the plaintiffs’ lobby] is doing,” said Ted Frank, a resident fellow at the American Enterprise Institute. “It’s a gigantic expansion. Every time I talk to somebody on the Hill, I learn about a new bill that has a giveaway for trial lawyers.”
Quin Hillyer is Associate Editorial Page Editor of The Washington Examiner.
