Killing Their Young By Dashka Slater
Empty Suits By Alicia Mundy
Moving Mountains By Geoffrey Gagnon
The decline of the once mighty Association of Trial Lawyers of America.
THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA has just lost New York senator Charles Schumer. It wanted his vote to block a major new tort reform bill. But the Democrat Schumer's gone and he does not want to be found. Not by ATLA and not by the media, whose calls he and his staff have avoided since he switched sides.
The Class Action Fairness bill, which Schumer long opposed and now supports, would move almost all class action suits, such as those filed over credit card overcharges or defective merchandise sales, from state courts to federal ones, even if all the plaintiffs are in a single state. Between backlogs on federal dockets and a historic lack of interest of federal judges in such suits, say trial lawyers, this move would nearly end class action suits.
In May, Schumer co-signed a letter with another Democrat, Connecticut's Christopher Dodd, promising GOP Senate leader Bill Frist they both would support "class action fairness," which President George W. Bush and America's business lobbies very much want. Dodd is beholden to the insurance industry in his state and his defection isn't shocking. But Schumer? It's unusual for a liberal Democratic senator from New York to turn his back on the friendly financiers at ATLA, long considered one of the mainstays of the national Democratic Party, and particularly of New York's. In late May, ATLA reps assured me that Schumer had not jumped ship. After the senator's defection, Carlton Carl, ATLA's director of media relations, said, "Senator Schumer unfortunately decided to support the class action legislation, but has also indicated he may support some consumer-friendly amendments."
What Carl can't say, but what some of his colleagues in this battle will say off the record, is that the defections are a consequence of the depth to which trial lawyer reputations have sunk in the public's eye. With the public turned against trial lawyers, in significant part because of ATLA's failure to promote them, Democrats desirous of showing pro-business inclinations have little to lose in supporting tort reform. Thus, Schumer is lost.
FOUNDED IN 1946, ATLA has been considered one of the most formidable lobbying forces in Washington for decades. Through the '80s and early '90s, it beat back Congressional and state efforts to cap jury awards, and it stopped attempts to make plaintiffs pay if they lost their cases. At the same time, and against the odds, ATLA stalwarts won settlements in cases brought by victims of Agent Orange. From 1990 to 2004, ATLA gave more money to federal political candidates than all but three other organizations.
But now when insiders talk about ATLA's public relations strategy, they talk about its "m.o." Not modus operandi, but missed opportunities. A line attributed to Winston Churchill nicely characterizes ATLA's current ineffectiveness. Describing his political nemesis Clement Attlee, Churchill purportedly said, "An empty taxi arrived at 10 Downing Street, and, when the door was opened, Attlee got out." This time it isn't Attlee, but ATLA.
How badly has the reputation of ATLA members declined? One clue appears on ATLA's website. In an apparent plea for understanding, ATLA's home page now touts a section called "Proud to Be a Trial Lawyer." ATLA members also often stay in the background at events supporting groups of victims visiting Congress. They fear "tarnishing" the situation and undercutting the cause.
An eyebrow-raising example of the declining reputation of trial lawyers is that, in mid-June, members of the American Medical Associationdoctors who have no official compunctions about treating murderersdebated whether to withhold medical treatment from trial lawyers and their spouses. The resolution at their annual convention was a silly gesture of defiance against the contribution made by successful civil actions to high malpractice insurance premiums, and it was withdrawn prior to the vote. But even its presence on the agenda was an embarrassment to trial lawyers. "Given that he's a trial lawyer, people are surprised that John Edwards doesn't have horns and a tail," said plaintiff's lawyer Jonathan Cuneo, referring to the Democratic vice presidential nominee and one-time trial lawyer who has come under heavy attack for his former profession.
Corporations support the other side and it has more money, yes. But ATLA isn't poor by any stretch. It has faltered for tactical reasons. It has refused to compromise on legislation when doing so would have been prudent. It has done a poor job of promoting the virtues of trial lawyers, whose work product is often the only source of true information about corporate misbehavior and who have gotten real victims real medical care payments. When environmental and pharmaceutical regulators have failed to protect the public, trial lawyers have become the enforcers.
ATLA hasn't capitalized on the profession's virtues because the organization has refused to distance itself from "bottom feeders"plaintiff's attorneys who are among the last to arrive at problem issues, do no original work of their own, and get settlements for healthy victims. Consequently, the brave plaintiff's lawyers who defend children maimed by the product of a drug company find themselves lumped together with the people who sue McDonald's over fatty fries.
Carl said that the organization cannot suggest that some behavior and certain kinds of lawsuits are unseemly. He may be right that drawing a line is hard. But it's not impossible, and ATLA's failure to draw it is a big reason why even good-guy trial lawyers are now seen as bad guys.
More likely, ATLA is unaware of its own demise and hasn't begun to react. Most lobbies in Washington try to cast as wide a net as possible. PhRMA, the lobby for the pharmaceutical industry, represents drug companies that disclose every danger of every drug and companies with an ethic that encourages hiding info. But PhRMA's allies are in power on Capitol Hill and in the White House and they control Washington's agenda. ATLA's allies aren't in power in government, or in the media. It's going to need to throw some people out of the tent to succeed again.
THE DECLINE OF ATLA STARTED IN 1994 when Republicans took over Congress and pushed the Contract With America, calling for the passage of a "common sense legal reform act" that would have emasculated Americans' ability to seek damages from corporations in court. Then, GOP donors filled the coffers of the American Tort Reform Association, founded in 1986 to limit jury awards. Financial contributions from corporations and industry groups also supported "think tanks" set up to give a polished imprimatur to studies showing the high cost of lawsuits to the economy.
ATLA won some early battles. In the first months of 1995, the chairman of the Senate Commerce Committee bewailed his inability to pass "loser pays" litigation, damned the trial lawyers lobby for blocking product-liability reform, and said, "We don't have [enough] votes on any of them." A poll in March 1995, paid for by ATLA, showed that 77 percent of Americans opposed tort reform.
But the tide turned, and the Senate passed one of the bills the senator had bemoaned. Now the numbers are reversed. A poll publicized by ATRA last year showed that seven and a half times as many people support tort reform as oppose it. Whether that number is precise, it's clear that ATLA is on the defensive. Today, tort reform bills dealing with malpractice, product liability, standards for evidence in cases dealing with corporations, or award sizes have passed in almost every state.
The Contract's program hasn't been fully realized, but its supporters have passed pieces of the law, and they keep picking up supporters, as with Schumer, and have pursued their goals relentlessly in Congress. One of ATLA's affiliated employees said of the constant influx of bills, "It leads to the Perils of Pauline every two to three weeks."
In April, ATLA "won" a fight in the Senate over a bill limiting certain pain and suffering damages by losing only 49-48, a close enough margin to prevent supporters from stopping a filibuster. In May, no victory could be conjured from the defeat: malpractice caps passed in the House by a 229-197 vote. When Schumer and Dodd, along with Louisiana Democrat Mary Landrieu, switched sides to work with ATRA, no Republicans switched to ATLA's side against the Class Action Fairness Act.
PART OF ATLA'S SLIPPAGE COMES BECAUSE OF ITS STRUCTURE. The organization's presidency turns over every year, creating organizational disarray and recent infighting, according to people who have worked closely with it. The organization also tries to run itself like it's part of the Republican Party, with top-down mandates. It doesn't act like its part of the Democratic Party, reaching out to far-flung and disparate coalitions that politicians like Schumer can't afford to alienate.
ATLA doesn't seem interested in coalitions even when they come knocking at its door. Last year, a congressman pushed a bill to add $25 million for government-sponsored research on pulmonary hypertension, the usually fatal lung disease that can be caused by a drug that was part of the notorious Phen-Fen combination, a diet drug over which trial lawyers won hundreds of millions of dollars in the late '90s. To get this issue on the table, GOP Representative Kevin Brady of Houston was approached and lobbied not by ATLA but by a group of diet drug victims and the Pulmonary Hypertension Association. There was no ATLA presence and no group of trial lawyers marching on Congress to push for this small victory. Perhaps as a consequence, there's still no companion bill in the Senate.
A deeper problem is that ATLA is locked in a Capitol Hill-only mentality. Because it thinks it can rely on the friendships that its lobbyists have developed with lawmakers, ATLA hasn't committed to doing the work necessary to convince the public about trial lawyers' virtues.
This logic may have held prior to 1994, when public criticism of trial lawyers was strong but not yet burning. But it's folly now and ATLA has not done a good job of promoting itself, and trial lawyers more generally in the press. In early June, a Federal judge ordered the British American Tobacco company to turn over a several-year-old memo showing how the cigarette maker had planned to destroy documents. Packaged correctly, this could have been a good-news bonanza for trial lawyers. But ATLA didn't work with the press and the BAT document ran only as a short spot buried in The Washington Post.
Similarly, in June 2003, Christopher Placitella, a former president of the ATLA New Jersey chapter who now works with the law firm of Wilentz, Goldman & Spitzer, traveled to Washington holding a set of documents that dealt with several of the major insurance companies' secret knowledge of deaths from asbestos. Placitella wanted ATLA to make these documents as public as possible, refuting news stories that have called the current litigation over asbestos a lawyers' feeding frenzy. Thanks but we're doing fine, ATLA reps told Placitella.
An absurd example of ATLA's public relations nonstrategy occurred in June 2003. At a Congressional hearing about lawsuits over fast foods, two Republican congressmen joined three business group lobbyists in trashing bottom-feeder lawyers. ATLA didn't show up, and trial lawyers ended up defended only by John Banzhaf, an attorney of enormous talent and ego. Things disintegrated after GOP congressman Chris Cannon asked Banzhaf if his license plate really said, "Sue the bastard." The needling didn't amuse Banzhaf and he grumbled that he might sue Cannon for slander.
Carl says it was his "understanding that the Democrats were offered one witness and selected Banzhaf as the most vocal advocate of litigation in this area." Gretchen Schaefer of ATRA says that ATLA chose to opt out, and that's why Democrats looking for a witness decided to choose Banzhaf. Whatever the reason for ATLA's no-show, the resulting press clobbered trial lawyers.
SOME LEGAL FORCES THINKOR HOPEATLA is getting on track. ATLA is pushing the American Association of Retired Persons' cause, the importation of cheap drugs from Canada, on the latest cover of its Trial magazine. ATLA is also trying to be less secretive and to build coalitions. "One of the best things that has happened is that they have become fully supportive of other groups' projects such as victims' Lobby Days," said Pamela Gilbert, a lawyer at Cuneo Waldman & Gilbert in Washington. She added that ATLA, using its relationships on Capitol Hill, has helped get victims before staff and members of Congress, including a group of malpractice plaintiffs, some on crutches and in wheelchairs, who visited the Hill in April.
But these examples are rare, and ATLA isn't promoting even its own good work well. Few people know of the pro bono work ATLA lawyers are doing with Trial Lawyers Care to get compensation for the victims of the 9/11 terrorist attacksan effort that could have imploded if then-president of ATLA Leo Boyle had not intervened. Several ATLA members and officials said Boyle made it clear that he would not tolerate trial lawyers dealing with 9/11 as just another mass tort. Few lawyers broke ranks, and Boyle can boast that victims who used the pro bono lawyers in TLC have received about $500,000 more for their families than those who hired counsel and paid fees.
This would be good publicity, if ATLA told the public. But it hasn't. It's only telling itself. ATLA leadership unveiled a video on Trial Lawyers Care, with interviews from grateful victims of 9/11 and their families this July. It presented trial lawyers in a new and better light. But its audience was only the ATLA members attending the group's annual convention. Well, said a member of TLC, "I guess it will make them feel good about themselves."