A call to arms for trial lawyers who can do more than sit on their asses and bitch.
A little more than six years ago, I began blogging about the civil justice system. When I started blogging, I was a community college student working as a paralegal for a small personal injury law firm. I had no degree, little experience with the civil justice system, and practically no credibility whatsoever among trial lawyers. Over the course of a couple of years, I managed to gain a little bit of credibility; I was even published in TRIAL Magazine, the official magazine of the largest association for trial lawyers. I also got invited to join Tortdeform.com, a leading blog in the fight to protect the civil justice system. I’ve spent thousands of hours and thousands of dollars to educate the public about the importance of a robust tort system. I’ve lectured at school, printed and distributed newsletters, and been the target of numerous personal attacks from the millionaires behind the tort “reform” movement. (Note that I don’t say “victim.” I’m a proud defender of the court system, not a victim.)
As I write this post, I have one week left of classes in my second-to-last semester as a law student. In just a few short months, I’m going to become that which corporate sycophants fear the most: a trial lawyer, complete with subpoena power and the ability to hold even the largest corporation accountable for injuries its products cause. To me, the best part of becoming a trial lawyer will be having the salary to hire a little bit of help in my blogging efforts. A better graphic design, some more pay-per-click ads for “tort reform” and the ability to buy those bullshit press releases that everyone uses to artificially inflate their incoming link count. I’m very excited to have new resources to fight this battle with. But I’m also saddened that I’m forced to spend my time and my dime fighting this battle while so many trial lawyers sit with their thumbs up their asses, content to let me and a few other bloggers act as their foot soldiers.
Trial lawyers, as a collective group, have billions of dollars at their disposal, and the private phone numbers of every (Democratic) Senator on speed dial. They have money, they have power, and they have the absolute worst public image of any group this side of child molesters. For God’s sake, Republican members of the U.S. House of Representatives in 2009 shout “Trial Lawyer!” in the same way they would have shouted “Communist!” in 1959. It’s an epithet, a dirty phrase. To many Americans (and most Republicans), being a trial lawyer is something to be ashamed of. Well, I’m God-damned proud to be a future trial lawyer. To me, it’s a noble calling. What I am ashamed of is that so many of my brethren are cheap, lazy bastards who won’t lift a finger to expose tort reform for the bullshit corporate scam that it is.
How much money do mass tort referral mills spend every year on their endless commercials? You know the ones I’m talking about: “Have you or a loved one been injured by _____? If so, call us and we’ll sign you up and refer your case out to a lawyer who actually practices law. Then, we’ll take our 1/3rd referral fee and use it to run even more obnoxious commercials!” (OK, they don’t say that, but it’s what they do.) I have no respect for the referral mill model. That would change (a little, anyway) if they used their vast funds in the same strategic way that the reform movement does.
Look at what the tort reform movement has done. They’ve bought bullshit think tanks staffed by corporate fluffers that turn out propaganda that would turn Goebbels green with envy. Every year, they turn out slick, glossy, and effective books about the evils that trial lawyers wreak on the economy. We, on the other hand, have a couple of impotent lobbying groups that turn out obviously-biased coloring books which do nothing to sway public opinion to our side. How much money – how God damned much money – does the Chamber of Commerce spend every year putting together propaganda that is full of lies and misstatements to foist onto the general public? And how much do trial lawyers spend? Not only less than the Chamber, but I’d bet less than the top ten percent of the trial bar blows at strip clubs every year. If the best trial lawyers in the country were half as interested in stopping tort reform as they were at staring at tits, well, it’d be a whole new ball game.
How hard would it be to hire a couple of Ph.D’s to write some reports that:
- Explain how the civil justice system REALLY works
- Equate defensive medicine with insurance fraud
- Expose the scorched Earth tactics of the defense bar as the true cause of the cost of litigation
- Publish some of the damning evidence that justified the huge punitive damage awards the public thinks aren’t justified
- Show how tort reform shifts economic costs onto taxpayers
Seriously, what would it take, a half a million a year to start a think tank to publish reports on a quarterly basis? Name it something ambiguous like “The Economic Growth Consortium,” or “Americans for Personal Responsibility,” or copy Knight Rider and name it “The Foundation for Law and Government.” Just come up with a name that doesn’t scream trial lawyer. Put a couple of economists on the payroll, hire them a secretary or two, and then take a graphics arts student as an intern to format their reports. Refuse to reveal the names of the donors, just like the big boys at the Chamber of Commerce. Then, start releasing scholarly reports that counter the lies that the Chamber and the ATRA spin. Maybe even go on the attack and author a report like, “Common-sense reforms necessary for fairness to return to the California civil justice system,” and then use that report to argue for the abolition of MICRA. Or “Judicial Activists Threaten 50 Years of Stability” and use that to attack Iqbal.
Scholarly reports; ha! I can’t remember the last scholarly report I’ve read the pushed a trial lawyer point of view. I think trial lawyers have ceded scholarship to the defense bar. How else to explain why they get bounced so often in Daubert hearings, why so many of them delegate “law work” to the least qualified lawyers in the office, and why there are so few writing contests for law students in comparison with the defense bar. Come to think of it, some of the most competent plaintiffs’ attorneys I know used to be defense attorneys. In fact, the highest compliment I’ve yet been paid was by a former supervisor (himself a Biglaw refugee) when he told me that I write like a defense lawyer. By that, he meant that I bother to proofread, check my cites, and rely on law instead of emotion to carry the day.
I know I’m not alone in this frustration. I know there are other trial lawyers and future trial lawyers who want to organize and start fighting the “reform” movement in an effective, and professional way. If you’re one of them, email me at justinian at justinian dot us. If you’re willing to contribute time, money, or other resources, I want to hear from you. Our first project will be a well-written and well-designed “Civil Justice 101” book to explain how the tort system works to the general public. It will explain that SCOTUS has already capped punitive damages, how Daubert and Frye keep bad science out of the courtroom, and how our regulatory agencies are both too understaffed and too underfunded to adequately protect the public. We’ll put it together and distribute it to the media and to politicians. Let’s not let ourselves be defined by the Chamber of Commerce, and let’s quit waiting for the old dogs to step in and fight this fight for us. Let’s get this book done by Feburary 1st, and let’s use it to help make sure the tort system doesn’t get torpedoed in the battle for healthcare.
If you’re a trial lawyer, consider this your call to arms. You can either sit there on your ass and bitch impotently about tort reform, or you can work with me to put a stop to it. Your choice.