Those Trial Lawyers Never Miss a Trick

Magicians call it misdirection: the art of getting audiences to look in the direction the magician wants them to, so they miss the trick.

Today, politics itself is being misdirected. Some of the biggest controversies in the United States--debates over gun control, auto safety, health care policy and pharmaceutical development--are no longer being decided by the democratic process or by the rule of law as traditionally understood.

Sure, the politicians continue to talk, but their words are increasingly just part of the illusion. The real tricks, and some very big bucks, are being generated by a small group of trial lawyers who are pulling the ultimate trick: They are making the substance of politics disappear.

Even at the presidential level, politics has been trivialized. Will Al Gore keep wearing his brown suits? Will George W. Bush keep saying mean things about his fellow Republicans? These questions may be fascinating to the reportorial and punditical class, but they ill serve the public because, in chasing down the answers to these and other trivial pursuits, the real dynamic of trial lawyer power goes mostly unnoticed.

Consider gun control. Gore has called for licensing new handgun purchasers, while Bill Bradley has called for licensing all handguns, new and existing. Meanwhile, Bush defends his policy of allowing Texans to carry concealed weapons. Yet any new gun policy could soon be all but mooted because, if present tort trends continue, there won’t be any new handguns manufactured in the United States. Public officials talk, but it’s private lawyers who take action. Now that’s misdirection.

Newsweek reports that Colt’s Manufacturing Cos. will soon stop taking orders for virtually all consumer handguns. Colt’s disputes the story, but with legal costs mounting--the gun industry faces 27 lawsuits, and the $246-billion precedent of the tobacco settlement is staring it in the face--it’s hard to see how shallow-pocketed domestic gun makers will survive the trial lawyer onslaught long enough for the politicians to get their whack at them.

Why hasn’t this angle been covered much? Two possible explanations. First, journalists mostly support this legal onslaught against industries and products they don’t like. Second, to cover the story of how trial lawyers are preempting politics, elite newsies would have to travel to tort hot spots such as Hayneville, Ala. In 1996, for example, a jury there heard the case of one Alex Hardy, who apparently fell asleep at the wheel of his Chevy, leading to an accident that left him paralyzed. Yet plaintiff’s lawyers claimed, against all reason, that the vehicle was defective. Hardy was awarded $150 million in a case that has set a low standard for auto liability cases since.

And so while top-tier reporters collect tiny tales about who was in the room, for example, when the decision was made to move the Gore campaign headquarters to Nashville, the big stories--the events that will shape the country in the next century, regardless of who wins the election--get away like so many wily trout.

Worried about health care? Who do you think will have more effect on the future of medical research--the next bureaucrat appointed to head the Food and Drug Administration or the trial lawyers who shook down American Home Products for $4 billion based on dubious fen-phen studies? And without waiting for Washington to enact a “bill of rights” for HMO patients, trial lawyers are already crushing the industry. Just last month an Indianapolis HMO suffered a $51.5-million verdict. Billions of dollars worth of new cases are pending.

It could be argued that trial lawyers today play the same role that demagogic politicians did yesterday. There’s always a market for anti-corporate populism and soak-the-rich redistributionism. But if so, litigation is a perverse road to “social justice” since legalpreneurs, reaping fat contingency fees, are themselves getting filthy rich along the way.

Eventually it will dawn on Americans that they themselves are paying for this costly and clumsy system--in terms of diminished innovation, higher costs and lower shareholder values, including those held in pension funds. However, that day hasn’t come yet. The misdirection of replacing windy politicking with greedy lawyering looks like the winning trick for 2000 and beyond.

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James P. Pinkerton is a lecturer at the Graduate School of Political Management at George Washington University. E-mail: [email protected].