The GOP and dolts would have us believe trial lawyers are evil people! Not so, but as in many institutions there are bad ones and good ones, John Edwards is a good one!
John Edwards, Esq.
Republicans believe that Americans will never elect a trial lawyer president. They're wrong.
By Joshua Green
On August 5th, NBC's Meet the Press featured someone and something we're likely to see much more of in years to come: Senator John Edwards (D-N.C.) squaring off against a nervous representative of the Bush administration.
The issue in this case was the so-called patients' bill of rights, and Rep. Charlie Norwood (R-G.A.) the Bush surrogate. Days earlier, the president had sweet-talked Norwood into a midnight deal that sharply restricted patients' right to sue their HMOs. Norwood, who for many years had advocated a much tougher bill, had essentially been suckered, and appeared acutely aware of this as he sat alongside Edwards, glumly resigned to defending a bad deal.
Tim Russert was on the attack, pressing Norwood about his recent yielding on patients' rights to sue in state courts: "Why did you abandon those views?" Norwood hemmed and hawed and finally was reduced to parroting the administration's line: "It is potentially possible that [lawsuits] could ruin the employer-based health-care system in the country." Russert pressed him harder. "Do you believe that?" It turned out Norwood did not.
Russert then turned to Edwards, a trial lawyer by profession, who neatly summarized the deal's shortcomings. "Number one, this deal---which was written in the middle of the night, by the way---takes away rights that patients already have across the country," he explained. "Number two, it maintains the privileged special status that HMOs enjoy today. And, number three, it stacks the deck against patients when they're trying to hold HMOs accountable for what they do." Edwards also pointed out that a seemingly minor change in the bill's language had shifted accountability away from HMOs---something Norwood had failed to recognize and meekly agreed was "a mistake."
The discussion turned to caps on the amount of damages that negligent HMOs would face. Norwood had previously fought such caps and again stumbled in rationalizing his reversal. Edwards, who flat-out opposes capping damages, summed up his case in one line: "A right [to sue] that's not enforceable doesn't mean anything." By the time Russert broke for commercial, Norwood had pretty much thrown in the towel.
The fight over precisely how patients should be allowed to sue their HMOs may seem relatively minor, considering that 44 million Americans don't even have health insurance. But the debate that morning had a deeper symbolic meaning. As every political junkie knows, John Edwards almost became Al Gore's running mate in 2000 (several sources say he was next after Joe Lieberman). Among a handful of undeclared candidates for the Democratic nomination in 2004, he's lately been basking in media attention. With Gore's recent inability to reignite support, a case could be made that Edwards is the current frontrunner.
The fight was important on another level, too. For a long time, the two parties have wrestled in various contexts over the right to sue, Democrats generally defending it and Republicans seeking to restrict it. But at least in the public mind this issue hasn't yet risen to a defining philosophical difference like abortion, taxes, or the size of government. Many Republicans would like to change that, President George W. Bush prominent among them. As governor of Texas, Bush made "tort reform" one of his top agenda items. Quietly, in ways that have garnered little attention, the White House is laying out a strategy that in the coming months will seek to make tort reform a defining issue of Bush's presidency.
The pursuit of this agenda will naturally draw Edwards into the spotlight as a defender of the process of litigation in general and of trial lawyers in particular. It will place him center stage in one of the most interesting and useful debates of the next few years. Democrats will have to defend their belief that litigation is ultimately good for America, while convincing voters that this belief doesn't stem from hefty campaign contributions from trial lawyers. As the administration moves forward on tort reform, buoyed by ideology and by polls showing that three out of four Americans dislike lawyers, it will try to paint Democrats as the party of ambulance-chasers and Edwards as their champion, in the process snuffing out a potential challenger to Bush. In fact, that's already begun. "America won't elect John Edwards president for the same reason we've never elected a used car salesman president," declares GOP pollster Frank Luntz. "America hates trial lawyers."
That's the theory, anyway. But as Edwards' performance on Meet the Press suggests, the GOP may have picked the wrong fight against the wrong man.
A few weeks later, at "Tar Heel Thursday," his weekly constituent meeting in the Dirksen Senate Office Building, Edwards once again showcased the skills that make political consultants swoon. Twenty minutes after he was scheduled to arrive, he strode through the grand, paneled doors in a dark suit and pink tie, walked smiling to the front of the room, and without notes or pretension, summarized the issues he was working on (education and the patients' bill) in a lucidly matter-of-fact manner that didn't once invoke the name of either political party. On this day, he was addressing a group comprised of poultry farmers, home-schoolers, and assorted North Carolinians on late-summer vacations. The intimacy of the small gathering lent it the air of a church social. When he'd finished, Edwards answered all manner of questions---displaying a keen knowledge of everything from chicken prices to military testing to the rights of home-schooling parents---many with good-natured homilies about his experiences as a lawyer in small North Carolina towns. The crowd nodded appreciatively. Edwards finally was stumped by a Durham man who'd heard on talk radio that America had secretly been in a state of emergency since the early days of the Roosevelt administration and was concerned. Without flinching, Edwards spoke warmly (and uncondescendingly) about the importance of a vigilant citizenry, and promised to look into the matter. His tanned features, quick smile, and the reassuring cadence of his mild Southern accent made one feel certain that he would be on the right side of any debate. (It was also tempting to flash back to the second presidential debate---the one in which a burnt-umber Al Gore stiffly tried to appear gentle---and marvel at the thought of Edwards opposite Bush.) By the time Edwards left, the room was positively aglow, and everyone agreed it would be a good thing if he ran for president.
Afterward, Edwards explained that his proclivity for talking to constituents stems naturally from his childhood dream of becoming a lawyer. He came of age at a time when many lawyers were rightly viewed as heroes. They included people like Thurgood Marshall, who used the law to bring down the system of legal segregation in the South, and Ralph Nader, whose lawsuits forced an arrogant auto industry to install seatbelts and airbags, thereby saving thousands of lives. "My idealistic view of lawyers was that they could help people who couldn't help themselves, and couldn't fight for themselves," Edwards says. "Since childhood, I thought that's what being a lawyer was all about. I still think that, by the way. In that sense, the transition to the Senate was a very natural one."
Some time soon, John Edwards must decide whether he wants to continue that transition to the presidency. He has already acquired the bug for travel, endemic in future presidential candidates, which has taken him to Illinois, Florida, and California. In March, he made his first trip to Iowa, site of the first presidential test in 2004. The factors conventionally deemed attractive about his candidacy are easy to list: He is young (47), charismatic, and telegenic, hard-working and exceedingly bright. His flair for politics has enabled him, as a first-term senator, to take so successful a lead on the patients' bill that his party put him out front on several other issues. As a popular Southern Democrat, Edwards has the potential to break the Republican lock on the South that cost Al Gore every Southern state, despite his being a Southerner himself. And Democrats worried that Gore presents the party with a Bob Dole problem in 2004---unbeatable in the primary, ineffectual in the general election---find Edwards an attractive alternative. Even opponents are impressed with him: Charles Black, a GOP consultant with North Carolina ties, readily concedes that "Edwards has got a lot of Bill Clinton in him---without the ethical or moral problems."
Greedy, Evil, and Ethically Bankrupt
Edwards hasn't compiled enough of a political record for Republicans to attack. Before he was elected to the Senate in 1998, he had never held office. His respectably centrist positions don't seem captivating enough to energize a McCain-like populist bid for the White House. But neither are they easy for the GOP to exploit. The media has focused on Edwards the politician---his looks, his charm, and his positions. But GOP political strategists are already digging into his previous life as a trial lawyer, convinced that something damaging will turn up. It's a strategy that has the advantage of dovetailing with the deeply held Republican conviction that the countless excesses of trial lawyers are among the fundamental problems facing the country today.
Republican masterminds will argue vehemently that attacking lawyers is a winning move. Polls show that three-fifths of Americans think lawyers are greedy, and three-quarters believe that they charge too much; roughly the same percentage believes litigation to be too costly, too lengthy, and too heavily geared toward the rich. This hostility informs public attitudes about lawyers as people. The American Bar Association reports that only one person in five agrees that lawyers are "honest and ethical." Consequently, law is among the least respected professions. It doesn't help that more than three-quarters of lawyers don't want their children to follow them into the legal profession. In politics, "lawyer" has come to displace "liberal" as the dreaded "L" word, especially in the South. In Louisiana in 1999, all but one of the 10 candidates for state legislature attacked as trial lawyers lost. As one local pollster put it: "ŒTrial lawyer' has become a pejorative term. It is now an acceptable substitute for calling someone a devil." And at least on an anecdotal level, that's just as true nationally. When it comes to civic virtue, lawyers rank in the minds of most Americans somewhere alongside ivory smugglers and tobacco executives. (Polls do show that lawyers edge out used car salesmen. But not by much.)
There are material reasons, as well, for Republicans to go after trial lawyers: the large corporations that generally support Republicans are frequently subject to lawsuits that exact damage awards in the millions of dollars. Small businesses fear trial lawyers even more. A sizable judgment against a Fortune 500 company at most knocks down its stock price; but it can drive a small business into bankruptcy. The National Federation of Independent Business, the main small-business group instrumental in crafting the president's tax cut, is equally involved in guiding tort-reform initiatives.
If only by default, trial lawyers strongly identify with the Democratic Party. In those parts of the rural South where unions are weak, they constitute most of the party infrastructure and give accordingly. In the 2000 election cycle, Democrats received 98 percent of the nearly $15 million that trial lawyers gave to candidates, far outclassing the degree to which Republicans benefited from the oil and gas industry (78 percent of its donations) and the pharmaceutical industry (68 percent). So, in addition to aiding important constituents, tort reform offers the added benefit for Republicans of weakening a pillar of the opposition.
Tort Reform, Texas-Style
Tax cuts aside, nothing is closer to George W. Bush's heart than dismantling the current legal system. Long before there was "compassionate conservatism," Bush was attacking the excesses of trial lawyers. In Texas, demonizing lawyers is a hallowed tradition long predating Bush's governorship. In the mid-1980s, state Republicans and conservative Democrats began targeting what they considered predatory litigation, passing laws to limit consumers' rights to sue businesses, and electing justices to the Texas Supreme Court who shared this point of view. Bush merely tapped into this sentiment when he ran for governor. "Probably the first and most important thing I will do when I am governor of this state," Bush promised during the campaign "is to insist that Texas change the tort laws and insist that we end the frivolous and junk lawsuits that threaten our producers and crowd our courts." And his first major accomplishment after being sworn in was to call an emergency session of the legislature to take up tort reform. Within weeks he'd signed business-friendly legislation capping punitive damages, limiting class actions to federal courts (which are more expensive and harder to navigate than state courts), and making it easier for judges to impose sanctions on plaintiffs who file frivolous suits.
The administration is now filled with people such as Karl Rove, who helped orchestrate the successful tort initiatives in Texas and want to do the same thing nationally. As early as January, the White House is planning to roll out a series of tort reforms, including similar caps on some punitive damages and restrictions on filing class actions.
The coming battle over the right to sue is a perfectly good argument for the country to have. There are plenty of abuses of the legal system that Democrats would be foolish to defend. But if Republicans decide to make Edwards the focal point of their campaign, they're likely to lose the argument---and possibly the White House.
The recent history of the GOP suggests a party often blinded by its ideology. In 1995, House Speaker Newt Gingrich (R-G.A.) fundamentally misread the public's attitude toward government and brought on a costly shutdown that hurt Republicans in 1996 and swept Clinton on to a second term. Poll data at the time suggested that most Americans shared Republicans' hatred of "government," something Gingrich and his allies very much wanted to believe. What the Speaker failed to realize was that for most people such emotion operates mainly in the abstract. When federal agencies closed and Social Security checks suddenly seemed threatened, voters were furious and---with Bill Clinton's deft guidance---directed their anger at the GOP.
At about the same time, Republicans became enamoured of polls showing that the vast majority of Americans believed that too many immigrants were being let into the country and onto the welfare rolls. Sensing an opportunity, the Republican Congress set out to pass an extremely restrictive immigration-reform bill, inserting into the welfare-reform bill language that stripped legal immigrants of access to such services as food stamps. They failed to anticipate that moderate swing voters would view these moves as extreme or that they would infuriate legions of Hispanic and Asian voters.
Republicans can undoubtedly get some mileage out of exploiting the general notion of lawyerly excess. What they don't seem to realize is how quickly public opinion is apt to shift once their campaign turns to specific legal issues, and a specific lawyer. As it happens, Edwards' professional biography bears a much closer resemblance to the crusading protagonist of a John Grisham novel than to the ambulance-chasers who solicit on late-night cable.
Edwards has the sort of up-from-the-lower-middle-class "story" that's so effective on the campaign trial. He grew up in the small North Carolina town of Robbins, where his father worked in a textile mill and his mother ran a small store. Edwards has crafted his idyllic upbringing into a gently self-deprecating stump speech in which he pokes fun at himself as the "college boy" who got stuck with the worst jobs in the mill when he was home from North Carolina State. The speech is intended to extol the virtues of hard work---his own in particular---and identify with the "little guy," something at which he is uncommonly adept, all the way to his earthy choice of a college major (textile management), something he characterizes as job insurance in case he didn't get into law school. Of course, Edwards did get into law school at the University of North Carolina, where he met his wife, Elizabeth, and his future law partner, David Kirby.
Upon graduating, he moved to Tennessee to join former Republican Governor Lamar Alexander's law firm, which specialized in defending banks, insurance companies, and other corporations. In 1981, he returned to North Carolina, specifically to the politically well-connected Raleigh law firm of Wade Smith, a former Democratic Party state chairman, where he started a rapidly successful civil litigation division. He won his first multi-million dollar verdict in 1984, which he followed the next year with a $6.5 million verdict for a 6-year-old girl who'd suffered brain damage at Pitt Memorial Hospital---at the time, the largest verdict in state history. Edwards left in 1993 to start his own firm with Kirby.
Until he moved to the Senate, Edwards was a personal injury lawyer---the kind people most love to hate---and a very talented one. More than half his cases were medical malpractice suits. Many involved infants born with brain damage or other serious conditions that entail a lifetime of expensive medical care. Edwards also won cases against hospitals, cities, and corporations. "As a lawyer, he was the whole package," says Mike Dayton, editor of North Carolina Lawyers Weekly. "He's prepared, he's smart, and he's very personable." And he continued winning massive verdicts. In 1990, he was the youngest member inducted into The Inner Circle of Advocates, an invitation-only group of the nation's top 100 trial lawyers. By the mid-1990s, Edwards had become legendary. "After trials," recalls Howard Twiggs, a Raleigh lawyer and former president of ATLA, "jurors would approach Johnny and ask him for his card." It is said that insurance companies would suddenly become interested in settling when Edwards' name was added to a plaintiff's team. Edwards won a $7 million verdict for the parents of a 16-year-old who'd killed himself the day after being dismissed from a psychiatric hospital, an incredibly difficult case to win, Dayton says, because in North Carolina the plaintiff must prove that the entire burden of negligence lies with the defendant. In 1997, Edwards successfully sued a doctor for $23 million on behalf of the parents of a baby severely brain damaged by oxygen deprivation during labor.
The defining case in Edwards' legal career wrapped up that same year. In 1993, a five-year-old girl named Valerie Lakey had been playing in a Wake County, N.C., wading pool when she became caught in an uncovered drain so forcefully that the suction pulled out most of her intestines. She survived but for the rest of her life will need to be hooked up to feeding tubes for 12 hours each night. Edwards filed suit on the Lakeys' behalf against Sta-Rite Industries, the Wisconsin corporation that manufactured the drain. Attorneys describe his handling of the case as a virtuoso example of a trial layer bringing a negligent corporation to heel. Sta-Rite offered the Lakeys $100,000 to settle the case. Edwards passed. Before trial, he discovered that 12 other children had suffered similar injuries from Sta-Rite drains. The company raised its offer to $1.25 million. Two weeks into the trial, they upped the figure to $8.5 million. Edwards declined the offer and asked for their insurance policy limit of $22.5 million. The day before the trial resumed from Christmas break, Sta-Rite countered with $17.5 million. Again, Edwards said no. On January 10, 1997, lawyers from across the state packed the courtroom to hear Edwards' closing argument, "the most impressive legal performance I have ever seen," recalls Dayton. Three days later, the jury found Sta-Rite guilty and liable for $25 million in economic damages (by state law, punitive damages could have tripled that amount). The company immediately settled for $25 million, the largest verdict in state history. For their part, Edwards and Kirby earned the Association of Trial Lawyers of America's national award for public service.
Lawyer Versus Hog Farmer
Despite Edwards' Atticus Finch-like background, North Carolina Senator Lauch Faircloth set about targeting him on the basis of his profession when he campaigned for reelection in 1998, no doubt encouraged by GOP consultants such as Luntz, who'd been successfully pushing tort reform since the early 1990s. "It's almost impossible to go too far when it comes to demonizing lawyers," Luntz wrote that year in a memorandum to Republicans running for reelection. "Make the lawyer your villain by contrasting him with the Œlittle guy,' the innocent hard-working American who he takes to the cleaners."
But Luntz had it backwards. Edwards hadn't cleaned out Mom and Pop. He'd targeted corporations like Sta-Rite and negligent hospitals that had injured small children, and he'd won the unanimous jury decisions state law requires. What's more, he responded to Faircloth's criticism by inviting the public to scrutinize his legal record. Faircloth's campaign strategists considered making a commercial featuring a doctor whom Edwards had put out of business, but thought better of it when they realized Edwards would retaliate by putting forward the little girl who'd suffered at the doctor's hands. As it was, Faircloth never delved into specifics about his opponent's record. Nor should he have, says former ATLA president Twiggs: "Johnny, in that situation, can put on the patient, can put on the jury foreman, and can absolutely destroy that tactic if it's used. It would be a unique opportunity to show who he represented and why, and to show why the jury found in his favor."
By sheer virtue of his skill as a lawyer, Edwards had been able to avoid taking the kinds of cases the public detests. During the campaign, opponents tried unsuccessfully to criticize him for turning away 35 to 40 cases for each one he accepted. But such was the demand for his service that it was impossible to accommodate everyone. Even so, a close friend and fellow attorney says that, before running for Senate, Edwards had a team of doctors and nurses privately screen his record to make sure that no case he'd brought to trial could be considered frivolous: "When they got significantly into [their review], they decided he'd never come close to violating the standard."
Yet Faircloth pressed ahead with a lawyer-baiting campaign which at times appeared comically inept. Even before Edwards had won the Democratic primary, Faircloth ran his first television ad attacking his opponent's career. "Lauch tried to the tune of millions of dollars to make the case that because John was a trial lawyer, and because of the public's conception of trial lawyers, therefore you shouldn't vote for him," says a top official of the Edwards campaign. "After a month and a couple million, Faircloth realized he wasn't getting anywhere." But this did not stop his campaign from following the ad with another, smearing Edwards as a trial lawyer who was also a liar. It didn't get much traction. Next came an ad vilifying Edwards as both a trial lawyer and a liberal. No luck there, either. Faircloth's final ad featured side-by-side photographs of Edwards and Bill Clinton sporting Pinocchio-style noses while a voiceover linked them as "two tobacco-taxing liberal lawyers who are well known for stretching the truth."
The Faircloth campaign spent $2 million in the last three weeks of the campaign on television ads that ultimately backlashed. "Their negative stuff worked, Faircloth's stuff worked against him," a Faircloth aide concedes. In the waning days of the campaign, one local newspaper grew so fed up with the lawyer-baiting commercials that it editorialized: "Faircloth's ads use Œlawyer' as an epithet, as if Edwards' profession was somehow less honorable than the way Faircloth makes his money---politics, hog feeding, [and] land speculation."
Yet the lesson Republicans took away from the race was that Faircloth hadn't attacked lawyers nearly enough. "Lauch went at it very half-heartedly and he blinked," says a prominent GOP consultant who advised Faircloth. "He didn't identify him strongly enough as a plaintiffs' lawyer," says Black. If the definition of insanity is doing the same thing over and over but expecting a different result, then clearly lawyers like John Edwards drive GOP operatives crazy.
In July, Edwards' opening speech at the Association of Trial Lawyers of America's annual convention in Montreal vividly captured the odd mixture of professional pride and paranoia that distinguishes the modern trial bar. "For 20 years I fought for the rights and dignity of ordinary people, just like everyone in this room," Edwards told a standing-room-only crowd. "I make no apologies for what I spent my life doing. I am proud of what I did: leveling the playing field." The convention buzzed with excitement over the Ford/Firestone suits, which all agreed was a public relations coup, and the new avenues for lawsuits that Edwards' patients' rights bill would create. There was much talk of "helping the little guy." Edwards left the podium to shouts of "Edwards for president!" And just before the convention's awards luncheon---at which no fewer than three trial lawyers' groups presented awards to the attorneys who sued Firestone---one of the lawyers paused to read an invocation: "You created us, Lord, not to accumulate treasure for ourselves, but to do your work." Then the conventioneers split up to learn the newest ways to sue over hip implants, misdiagnosed breast cancer, recalled drugs, herbal remedies, substandard nursing homes, pesticide poisoning, and train derailments.
Though it's perhaps a stretch to claim their work is guided by the hand of the Almighty, it is unquestionably true that trial attorneys perform an invaluable service to society. Short of a world in which corporations and professionals operate responsibly without oversight, a democracy that wishes to protect the public has only two choices: government regulation or private-party litigation. In our system, which sensibly uses both, trial lawyers serve an essential regulatory function. Despite a vast federal safety bureaucracy, it took plaintiffs' lawyers to expose the dangers of Firestone tires and prompt a nationwide recall.
While litigation, or the fear of it, has undoubtedly led to a few less-than-desirable outcomes---the disappearance of teeter-totters from school playgrounds, or the high-dive at the public pool---lawsuits have resulted in ever-safer products by ridding society of the Pinto and the Dalkon Shield. For all the noise Republicans make about trial lawyers interfering with the free market, most people prefer driving on tires that don't explode, living in homes with insulation that won't kill them, and raising babies in cribs that won't strangle them. They aren't particularly bothered if it takes fear of litigation to bring these things about.
Through the discovery process, trial lawyers also unearth valuable documents that even federal agencies aren't privy to. One case in point: the lawyers who sued Firestone discovered that the company had known of the problem. As such, they provide valuable consumer protections---particularly in areas like medicine that are largely free from government regulation.
The Trouble with Trial Lawyers
Years of conservative agitation about trial lawyers have led the public to believe that the courts are clogged with "frivolous lawsuits." But that belief is unlikely to withstand a national debate, because the truth is fundamentally different from what tort reformers pretend. There has indeed been a rise in frivolous claims. But they haven't been brought by personal injury lawyers; those claims have actually decreased over the last decade. The single factor most clogging the judicial system is frivolous litigation brought by corporations against corporations, which don't involve independent trial lawyers at all. For example, John Deere went after a competitor for using the same shade of green that Deere paints its tractors. Gillette sued Norelco, claiming its ads for a new electric razor were "false and deceptive" because they depicted non-electric razors as "ferocious creatures." Nabisco sued Keebler over the latter's claim that its chocolate-chip cookies contained 25 percent more chips than Nabisco's. Each of these cases is more representative of the true problem of frivolous litigation. But because they involve a Republican constituency---business---rather than a Democrat constituency like trial lawyers, tort reform advocates don't mention them.
To persuade the public that frivolous personal injury suits have brought on a crisis, advocates of change religiously invoke cases like the elderly woman who spilled coffee on herself and won a $2.9 million jury verdict against McDonald's. Such stories tap into a genuine sense of frustration many Americans have with the modern tendency to blame others for problems of their own making. But on closer examination---the kind likely to happen if the GOP declares open war on trial lawyers---such anecdotes will be exposed as the urban myths most of them are. As Roger Williams University torts professor Carl Bogus explains in his book, Why Lawsuits Are Good for America, the woman who spilled her McDonald's coffee had to undergo a skin graft, spend weeks in the hospital, and offered to settle for $10,000 (McDonald's refused). She only sued as a last resort---the epitome of conscientious use of the legal system. Her original award of $2.9 million was later reduced by a judge, as most such judgements are, to $480,000, and she wound up settling for even less. To prevent other suits, McDonald's, which had previously ignored more than 700 similar complaints, stopped serving near-boiling coffee, as did its competitors.
There are plenty of real abuses by lawyers, though tort reformers seldom go after them. That's because they affect individuals, not corporations. As Stanford legal ethicist Deborah L. Rhode points out in her book, In the Interests of Justice , the frequent criticism that legal services are too costly (and lawyers too greedy) stems in part from the fees lawyers charge for routine cases like bankruptcy, immigration, welfare claims, and uncontested divorces, each of which could be handled more affordably by paralegals or other certified professionals---the average uncontested divorce, after all, takes only four minutes. But lawyers maintain a powerful monopoly over these basic services that they're wholly unwilling to yield. In fact, to kill off any threat of competition, the American Bar Association recently decided to increase enforcement of "unauthorized practice laws"---not against fraudulent lawyers, but against non-lawyers such as accountants, who provide legal services.
Trial lawyers, too, routinely commit certain sins that tort reformers ignore but that would infuriate the average person if they were better known. For instance, a group of personal-injury lawyers knew that certain Firestone tires were defective as long ago as 1996. But they didn't share that information with government regulators---who could have used it to save lives---for fear of compromising future lawsuits.
These are the kinds of abuses the GOP ought to target if it really wants to unnerve the trial bar. And there is some evidence that top Bush strategists are starting to understand that. Earlier this year, the administration guided a bill to indemnify teachers from civil suits. The trial lawyers' association put up predictably fierce resistance, arguing that the bill would invite an explosion in corporal punishment. But their lobbying campaign failed. By shrewdly pitting two Democratic interest groups---teachers and lawyers---against one another, the administration forced Democratic lawmakers to choose sides. The bill passed overwhelmingly.
For next year, the administration is considering a Legal Consumers' Bill of Rights. Modeled after the patients' bill, the legislation would require trial lawyers to give detailed information to consumers about how their frequently complicated fee systems work. Proponents liken it to consumer-protection measures the Federal Trade Commission requires of funeral homes and used car dealers. Trial lawyers bristle at the thought, but counter it only with the most bloodless legal arguments. "Congress doesn't have the authority to regulate lawyers in a given state," complains Carlton Carl, spokesman for ATLA. "Lawyers and what they do are governed by court system. It's a violation of the separation of powers to try and do that. It's an effort to intimidate injured people into not hiring attorneys." But trial attorneys really fear that the public will learn of their questionable contingency arrangements---such as taking one-third of a million-dollar settlement that took only a few phone calls to negotiate, or sticking clients with the bill for litigation expenses without disclosing that policy up front. "Educating consumers," says Victor Schwartz, a former trial lawyer and tort reform proponent, "is going to change the way lawyers do business."
Edwards himself won't discuss what or how he charges clients. Like other personal-injury lawyers, he worked on a contingency basis, whereby he earned nothing if he lost, but stood to receive between 30 and 40 percent of the award if he won. But he's never accepted that such information should be part of the public record. He has boasted---and why not?---of winning large sums for deserving plaintiffs ($152.4 million in 63 cases, by one count), but refuses to reveal his own take. Disclosure statements filed when he ran for the Senate established his net worth to be somewhere between $13.7 million and $38.6 million. But the appearance that he's trying to conceal the scope of his earnings plays directly to the Republican contention that fees must be brought to public view.
Opposing such elemental reforms illustrates the bunker mentality that fuels low public opinion of trial lawyers. The question is whether Edwards will succumb to such thinking. If he does, he'll fall into the trap the White House is setting for him. Throughout his career, Edwards has insulated himself from the worst practices of the legal profession through his own impeccable conduct as an attorney. But Republicans, if they're smart, will try to goad Edwards into defending the worst practices of his former colleagues. If they succeed, they may discover Edwards' Achilles heel: As fine a lawyer as he is, Edwards is captive to the romantic ideals of justice he absorbed as a young man, his own experience upholding them, and the paranoid self-righteousness most trial lawyers develop. In multiple interviews, pressed about the problems with lawyers other than himself, and whether he'd support any measures to discourage frivolous lawsuits, he dodged the questions by insisting, again and again, that he hadn't engaged in such behavior. His resistance to examining problems in the legal profession was palpable. Finally, exasperatedly, he offered a noncommittal nod toward reform: "I can tell you in general that if there are proposals that would deal with so-called frivolous lawsuits, without taking away the rights of ordinary people, then that's certainly something that I could support."
Edwards has a blind spot when it comes to admitting the real abuses of the legal system. But 2004 is a long way off, and Edwards is probably smart enough to realize that it is not in his long-term political interest to defend the indefensible. Indeed, there is evidence that he's already beginning to catch on. When faced with the bill indemnifying teachers from civil suits, he broke with the trial bar to join the 97 of his colleagues who
supported the measure. (The only Senator to oppose it was Fred Thompson---a Republican, and a trial lawyer).
The People's Lawyer
For all the GOP's success driving up lawyers' negative poll numbers, they haven't convinced Americans that what lawyers do for their clients is fundamentally wrong. Ferrel Guillory, director of the Program on Southern Politics, Media, and Public Life at the University of North Carolina, say of Edwards' clients, "The kind of people you can identify with---that middle-class, mainstream swing voters identify with---are the kind of people Edwards has defended." Or, in the words of one North Carolina attorney, "he's the people's lawyer."
To truly understand Americans' attitude toward trial lawyers---and by extension, why Edwards will triumph in the upcoming battle with Republicans over tort reform---a more revealing poll number shows that while three-quarters of Americans say they dislike lawyers in general, those same people report that they're largely satisfied with their own lawyer.
Edwards is uniquely situated to refute Bush's attacks on trial lawyers and tort reform because he's the living embodiment of how a trial lawyer can serve a regulatory function in the face of misbehaving corporations, cities, and professionals. Indeed, attacking him is one of the surest ways for Bush to inadvertently highlight his own greatest vulnerability: the perception among voters that he's a shill for corporate America. As Carlton Carl, the trial lawyers association spokesman, is quick to point out, "People hate insurance companies more than they hate lawyers." By reprising the '98 Senate race at the national level, Republicans play to Edwards' greatest strength. Yet according to Luntz and others, the conventional wisdom in Republican circles on how to beat Edwards can be summed up in one word: "occupation." Most people can distinguish between a good trial lawyer and a bad trial lawyer. Most people, but not, apparently, Republican strategists.
Joshua Green is an editor of The Washington Monthly