GOP Demonization of Trial Lawyers and How Edwards Will Fight Back If He’s the Democratic Nominee

[Time for change]

Republicans have been expressing nothing but contempt for trial lawyers for many years now. When John Edwards ran for Vice President in 2004 the anti-trial lawyer rhetoric heated up a notch. If he wins the Democratic presidential nomination, that rhetoric will heat up quite a bit more. Edwards is not just any trial lawyer. He is one of the most talented and successful trial lawyers ever to practice law in our country.

When Republican hostility and contempt for trial lawyers first became apparent to me, it was difficult for me to understand. The Republican Party is the party of the rich and powerful. Trial lawyers usually make quite a bit of money. So it would seem that the Republican Party would be very cozy with them. Furthermore, I too held a good amount of suspicion towards trial lawyers. It seemed to me that they made a lot more money than they deserved. I enjoyed lawyer jokes like bigots enjoy ethnic jokes. It seemed to me that since I held both Republicans and trial lawyers in such poor esteem that they should be natural allies.

But I eventually learned that my feelings about trial lawyers at the time were indicative of my ignorance on the subject. The irony is that the extent of my ignorance was largely due to Republican propaganda against trial lawyers – and I didn’t even know it. Like so many other Americans, then and now, I was disgusted at what I perceived as an overly litigious society characterized by a multitude of trivial lawsuits, which I believed led to skyrocketing costs that hurt us all.


The reason for Republican demonization of trial lawyers

As the Party of the rich and powerful, Republicans have long been much more corporate friendly – and consequently unfriendly to ordinary Americans – than Democrats (though there are many Democrats who lean in that direction as well). Far right wing Republican presidents such as Ronald Reagan and George W. Bush have exhibited their corporate affinities largely by using their powers to reduce regulations on corporations that require them to act in ways that reduce the likelihood of damages that they might cause to the American people. Such damages include such things as harm to workers’ health due to dangerous working conditions, harm to the health of consumers who buy dangerous products, harm to the environment, and economic harm accruing through monopolistic practices. Powerful corporations have the money to make political contributions that win them much favorable legislation at the expense of the American people, and corporate friendly politicians are rarely averse to being influenced by those contributions.

But deregulation doesn’t entirely reduce their accountability for the damages that corporations cause. No matter how far deregulation proceeds, under our system of law American citizens have the right to sue corporations who cause them harm. That’s where trial lawyers come in. They are the last line of defense against corporations that are unconcerned about the harm that they cause to others.

Thus trial lawyers represent a great threat to corporate power, which explains Republican contempt towards them. To deal with this problem Republicans have come up with “tort reform”. The main purpose of “tort reform” is to decrease the accountability of powerful corporations for the harm that their actions cause to the American people – which is done by severely limiting the right of the people to seek redress in the courts for such harm. And to give “tort reform” political saliency, Republicans demonize trial lawyers.


An example of how Edwards has held corporations accountable through our tort system

Since John Edwards is bound to be demonized as a trial lawyer if he wins the Democratic nomination, let’s take a look at an example of what that work has entailed. Edwards describes four of his cases in detail in his book, “Four Trials”, but I’ll just describe one here:

Valerie Lakey was a five year old girl who got stuck in a swimming pool because of a defective pool drain which suctioned up 80% of her small intestine, thus requiring lifelong medical treatment costing millions of dollars, and involving the need to receive food through intravenous and gastric tubes for more than 12 hours a day for the rest of her life. Though there was more than one responsible party, I’ll confine this discussion to the liability of the pool products manufacturer, Sta-Rite Industries, who supplied the defective pool drain cover that led to the Lakey family tragedy.

Prior to that tragedy, Sta-Rite already knew that their drain cover was defective, as they had previously been involved in several other claims related to defective drain cover related accidents. Subsequent to those claims, a study had been commissioned and had concluded that “unless deflected by a proper drain cover, the vacuum force created by a pool pump could trap and drown a relatively strong, aware adult” Yet Sta-Rite continued to sell the defective drain cover that they knew to be defective.

Edwards produced an engineer expert witness who testified that a solution to the defective design would have cost two cents per drain cover. Sta-Rite objected to Edwards’ demand for evidence of all previous cases, but the judge denied Sta-Rite’s objection, so Sta-Rite was thereby forced to produce literally a truckload of relevant evidence. The evidence clearly showed that Sta-Rite had been aware of numerous serious injuries resulting from their defective drain cover, yet they didn’t feel it was their responsibility to do anything about it, so they did nothing. Here is an excerpt from Edwards’ jury summation:

How many times has it happened to them?... When it happened to them the first time, what did they do to insure that it would never happen again? What did they do the third time?... the eighth time?... There are thirteen children that we know about so far… It’s continuing to happen.

The jury awarded the Lakey family $25 million, the largest verdict in North Carolina’s history. Sta-Right agreed to pay up immediately, without appeal, if the Lakey family would agree not to pursue punitive damages. Though they clearly would receive much more money than the $25 million in punitive damages if they pursued the case, the Lakeys could not afford to wait because they desperately needed the money for Valerie’s medical care. Edwards was outraged over the offer, but it had to be accepted.


The McDonalds spilled coffee tort case as a prominent example of right wing propaganda

Probably most Americans are at least aware of the McDonalds spilled coffee case, where a jury awarded a woman several hundred thousand dollars after she spilled a cup of McDonalds coffee on herself. The case has become sort of a joke and metaphor for our “out of control” tort system – due largely to right wing propaganda. Few Americans are aware of the facts of the case:

On February 27, 1992, 79 year old Stella Liebeck pulled the lid off a cup of hot coffee she had just purchased from McDonalds, following which some of the coffee spilled onto her lap, causing third degree burns of her genitals, inner thigh and buttocks. She spent 8 days in the hospital undergoing painful skin grafting and debridement of her wounds, following which she had to return to the hospital for additional skin grafting and was immobilized for several months.

Two years after the accident Liebeck wrote a letter to McDonald’s, without financial demands, asking them to please lower the temperature of their coffee. McDonald’s wrote back offering her $800, which angered her and thus motivated her to hire a lawyer. Her lawyer filed suit for $100,000 in compensatory damages plus $300,000 in punitive damages, and the case went to court.

In court, the following salient evidence came out: 1) McDonald’s sold its coffee at 185 degrees F, despite an industry standard of 120-130 degrees; 2) McDonald’s was aware that a burn hazard exists at 140 degrees and that the temperatures at which they pour their coffee into styrofoam cups will burn the mouth and throat; 3) Over a ten year period, more than 700 instances of burns from scalding coffee, including burns of infants and children, had been reported to McDonald’s; 4) During the same period of time, McDonald’s had settled several law suits, most of them out of court; 5) Yet they continued to serve coffee at dangerous temperatures because most of their customers like it like that, since they don’t open the cup or drink the coffee until they get to work, by which time it has had time to cool. Thus, it is a cost-benefit issue for McDonald’s.

The jury awarded Liebeck $200,000 in compensatory damages (double what her lawyer asked for), but reduced it to $160,000 because they held her to be 20% responsible for her accident. They also awarded her $2.7 million in punitive damages, which the judge reduced to $480,000. Both sides appealed the verdict, and later they settled out of court for an amount which McDonald’s required (as part of the deal) be undisclosed to the public.


The corporate effort to wreck our justice system

What most opened my eyes to this issue was Ralph Nader’s excellent book, “No Contest: Corporate Lawyers and the Perversion of Justice in America”. Nader’s book goes into great detail on the many legal mechanisms that corporate America has used to diminish their legal accountability for injuries and deaths that they cause, and the propaganda that they use to convince the American people of the need to diminish their legal accountability.

Nader describes the typical whining by powerful corporations about lawsuits:

The same profitable companies that have told Congress and the media that the product liability "explosion" is driving their business out of business have reported something quite different to investors and the Securities and Exchange Commission. Time after time, the same companies report in their SEC filings that liability exposure poses no material threat to their bottom line.

Bill Clinton vetoed a 1996 bill that would have greatly limited the rights of Americans to recover damages in product liability cases. But the push continued, culminating in the 2005 “Class Action Fairness Act”, which our Republican Congress pushed through and George W. Bush then signed into law.

With the tremendous power imbalance that exists between wealthy corporations and individual citizens, one of the few ways that people have of fighting back against corporations is to combine together to file class action suits. The “Class Action Fairness Act” severely curtails that possibility by requiring that class action suits be filed in federal rather than in state courts. Virtually all experts who analyzed this bill agree that it will prevent most class action suits from ever seeing the light of day – which indeed was the purpose of the bill.

One of the last chapters in Nader’s book is 64 pages long and is titled “The corporate effort to wreck our justice system.” This excerpt summarized the problem:

This organized attack on the civil justice system is a direct assault on victims. Led by corporate lawyers, corporation-financed “think thanks,” front groups, and campaign-contribution-hungry politicians like (former) Speaker of the House Newt Gingrich… it seeks a radical dismembering of the justice system’s ability to hold corporations accountable to people they have wronged. At its foundation, it is anti-consumer and anti-individual rights. As the nonprofit Alliance for Justice has put it, its agenda seeks to “elevate corporate profits and private wealth over social justice and individual rights as the cornerstones of our legal process”. The tort deform movement is a brazen effort by corporations and politicians beholden to corporate interests to pull off – under the guise of “common sense” reform – a nationwide perpetual bailout for polluters, swindlers, reckless health care providers, and makers of tobacco, defective vehicles, dangerous drugs, and many other hazardous consumer products.

Edwards’ appropriate response to attempts to demonize his trial lawyer work

We all know that if John Edwards wins the Democratic presidential nomination he will be mercilessly pilloried by his Republican opponents as a “predatory trial lawyer”. This is what Nader had to say about the demonizing of trial lawyers:

The tort deformers’ strategy is straightforward: Play on Americans’ suspicions about greedy “shyster” lawyers, i.e., those lawyers who represent individuals seeking compensation for personal injuries. Take the few lawsuits each year where juries award large punitive damages and distort the facts beyond recognition. Spread fears of job loss, of high insurance premiums caused by lawsuits, and of a national economy crippled by a litigation “explosion.”

John Edwards says that he doesn't think standing up for average people is a political liability, and that he will be ready for any such attacks. He says (See last paragraph):

I absolutely believe that what I've been doing for the last 22 years is perfect preparation for going to Washington and advocating for the people… I'm proud of what I have done… I am more than happy to have Valerie Lakey and Joe Blaney, whose wife was killed by a drunk driver a year ago – any of these folks – stand up and speak on my behalf, which I know they will. Whatever issue they raise about that, I intend to take it head-on.

The outlook for an Edwards nomination

Despite the demonization of trial lawyers, and despite Edwards’ constant marginalization by our corporate news media, he comes out better than any other presidential candidate – Democrat or Republican – in head to head match-ups against the opposition party’s candidates. This is how he compares with the two Democratic front runners according to the latest Rasmussen polls:

Edwards: +16 over Romney, +7 over McCain, +9 over Thompson, +12 over Huckabee, even with Giuliani
Obama: +4 over Romney, -2 against McCain, +7 over Thompson, +4 over Huckabee, even with Giuliani
Clinton: -1 against Romney, -6 against McCain, +2 over Thompson, +4 over Huckabee, -1 against Giuliani

If he gets the Democratic nomination, they'll no longer be able to ignore him. When they demonize him, as they will any candidate who threatens their profit margins, I think he'll be ready for them.