Trial Lawyers for Truth

Bush tortures facts on 'trial lawyers'
Newsday.com
July 13, 2004


The first thing we do, let's kill all the lawyers. No, wait. First let's torture the facts.

To hear President George W. Bush and his business supporters tell it, a legion of "trial lawyers" - personified by Democratic vice-presidential hopeful John Edwards - is ruining America. They clog the courts with frivolous lawsuits. They drive good doctors out of medicine with outrageous malpractice claims and astronomical insurance premiums. They bring honorable businesses to their knees with big class-action suits that bestow the most benefits on rapacious lawyers.

All outrages, if true. But are they? Ask John Ashcroft.

The attorney general keeps a fine set of numbers about civil trials and their outcomes. In April, the Justice Department's Bureau of Justice Statistics published a survey of state cases - most civil lawsuits are brought in state courts - that were decided at trial in 2001, the most recent data available. Cases that end without a trial - 97 percent - aren't included because settlements are often kept private.

Here's what the Justice Department says:

The number of civil trials in the nation's 75 largest counties dropped by 47 percent from 1992 to 2001. In jury trials in which the plaintiff was successful, the median award shrank from $65,000 in 1992 to $37,000 in 2001. Winning plaintiffs won punitive damages in only 6 percent of trials - with the median punitive damage award $50,000.

Not enough to make you, or your lawyer, rich.

Anyway, the president doesn't worry about the run-of-the-mill car accident case - though 60 percent of tort lawsuits involve automobiles, according to the National Center for State Courts. Nor is he concerned with the mundane slip-and-fall suit (17 percent of cases).

It's those oversized damage awards and over-the-top class actions that have his dander up.

But the largest damage award turns out to have been granted not in some liberal bastion but in Bush's home state of Texas. The award was indeed huge - $454 million, reduced to $121 million on appeal. Did this go to a child poisoned by toxic drinking water? No. It went to a Texas company that won a contract dispute with Mexican partners who'd broken a franchise deal.

And how many class-action suits turned up in the Justice Department's survey of 12,000 concluded trials? One.

It was against an insurance company that had changed the job classification of its claims representatives to "administrative" personnel - a switch that exempted the company from paying overtime. The employees won $124.5 million in uncompensated overtime and interest, to split among 2,400 workers and their lawyers.

Now, maybe these folks are greedy. But what would you call the lawyers who cooked up the job-title scam? Campaign contributors, maybe.

Come to think of it, have you ever heard a politician who is prone to apoplexy over "trial lawyers" also complain about union-busting lawyers? How about tax lawyers? Or HMO lawyers? The Bush administration just sided with these in a crucial Supreme Court case that said patients cannot sue their HMOs, even when the insurance plans deny care that doctors recommend.

Pity the doctors. They're squeezed between insurance companies that want to hold down their incomes and other insurance companies that want to pump up their malpractice premiums. Premiums have indeed spiraled upward. But the reason isn't only malpractice suits. The nonpartisan General Accounting Office concluded that losses from malpractice claims contributed to the premium hikes - but it couldn't determine "the composition and causes of these losses." We don't know if they stemmed from bad lawsuits or bad doctors.

The accounting office also found that insurers took in less money from investments in a chronically soft market - and so charged doctors higher premiums to make up the difference.

There's a mountain of evidence that should get the political case against trial lawyers dismissed. It probably won't. Few arguments are as powerful as a populist-sounding cause backed by the corporate wallet.