A jubilee is the celebration of a special event. For trial lawyers representing plaintiffs, the 2021 political scene in Washington, D.C., is about as special as it gets.
Trial lawyers see unprecedented opportunities in the new Congress to enhance litigation and potentially reap billions of dollars. This potential bonanza, which has largely gone “under the radar,” could end up making some trial lawyers far wealthier but may not be in the nation’s best interests.
The trial lawyers’ 2021 agenda will likely present a mix of new legislation and regulation designed to subject businesses to more lawsuits and potential liability. For example, a long-standing trial lawyer agenda item has been to prohibit the use of pre-dispute arbitration agreements that often serve to resolve disputes more quickly and at lower costs for consumers but may result in lawyers collecting less in legal fees. The organized trial bar has also lobbied to create new ways to sue an ever-expanding group of businesses and other entities — everyone from social media companies to makers of generic drugs.
For years, the trial lawyers have been stymied with their legislative agenda because Republicans controlled either the House or the Senate and provided a “check” against sweeping proposals to expand litigation. Now, with Democrats, major recipients of trial lawyer campaign contributions, in control of Congress and the White House, there are far fewer checks against unsound proposals targeting businesses and other entities.
Although Democrats have simultaneously controlled the executive and legislative branches on several occasions over the past half-century, 2021 may present the best political situation in American history from the trial lawyers’ perspective. Recent Democratic presidents have not been in lockstep with the trial lawyers’ agenda.
For instance, President Bill Clinton signed several bills to limit unsound litigation, including the General Aviation Revitalization Act of 1994, which bars lawsuits against manufacturers of small aircraft that fly safely for 18 years or longer. President Barack Obama, when he was a senator, distanced himself from the trial lawyers by voting in favor of the Class Action Fairness Act of 2005, which ensures that certain class actions are heard in federal courts instead of potentially less neutral, “plaintiff-friendly” state courts.
In comparison, President-elect Joe Biden has consistently supported trial lawyers’ interests during his many years in public office. He is viewed as an unwavering ally of the trial bar (for example, he opposed CAFA) and the strongest ally to have been elected to the nation’s highest office.
This promising 2021 outlook, though, will still require trial lawyers to navigate the slimmest of Senate majorities and potential filibuster of litigation enhancing bills. To clear a path, the trial lawyers will likely seek, and could possibly obtain, a limited repeal of the filibuster. For example, the trial lawyers might push to carve out “consumer” or “health and safety” initiatives from filibuster rules in order to tuck their legislative agenda under such umbrella exceptions.
Where legislative hurdles prove too great, the trial lawyers can be expected to take full advantage of the friendly new administration. Prominent trial lawyers are likely to obtain key appointments in the Biden administration and may use their new role to pursue regulations that enhance liability or litigation in ways that benefit their trial lawyer friends and supporters.
The full scope of what the trial lawyers have in store in 2021 remains unclear, but what is clear, regardless of the merits of any specific initiative, is that the public should be made aware of its existence and be kept informed. It is incumbent on the media to monitor trial lawyers’ influence on the development of federal laws in their jubilant 2021 and beyond and to place sunlight on any unsound proposals that are not in the public’s best interest.
Victor Schwartz is a former law professor and law school dean who has served in both Republican and Democratic Administrations.
