Hey, Edwards. Ya wanna shake that "trial lawyer" label? Support the Class Action Fairness Act, which may come up for a vote today. Broadly put, it grants Federal Courts original jurisdiction to hear large (read, more than $5 million) class action claims brought on behalf of citizens of more than one state. (I'm oversimplifying; Overlawyered has more details and links.)
Yup, worse than outsourcing is the forum-shoppin' class action entrepreneur, who goes from jurisdiction to jurisdiction "discovering" harms and filing suit. Stop 'em; make 'em go to Federal Court. Show that you ain't beholden to your class action pals, John, and ease the fears of big business. Good politics and, yes, good policy too.
(As Navy Davy notes in comments, it'll never happen.)
von
P.s. Can we retire "trial lawyer" as an epithet? (I pick on Professor Bainbridge, but only because he tosses the term around with such abandon.) Jiminy, I represent "big business," and I'm a trial lawyer. If I can't get a case out on a motion and I can't settle it, I try it. That's the way the system works.
And quit all the yappin' about the contingency-fee lawyer. Yeah, there are frivolous cases out there (not all of them filed by contingency-fee lawyers, by the bye). I'm willing to consider that some level of tort reform may be necessary. But lawyers take cases on contingency because litigation is freakin' expensive. Very few people can afford it. Contingency fee arrangements (increasingly used by big, white shoe firms with their corporate clients, incidentally) is the only way working, middle -- heck, even most of the upper -- classes can have a lawsuit filed.
If you limit punitive damages too much, you'll make it economically infeasible for any lawyer to represent these regular and even kinda rich folks. Meritorious claims will go unfiled; wrongs will go unrighted; the market will be a little more uninformed. Moreover, because lawyers on contingency only get paid if they win, they're incentivized to scrutinize the cases they take in -- no one wants to spend hundreds of hours on a case, only to lose and get nothing. (Really. Good contingency-fee lawyers turn down most of the people who approach them.)
If you really want to limit frivolous lawsuits without affecting the incentive to bring meritorious suits, don't limit damages. Heighten the pleading requirements. Make ‘em spell out what went wrong (fact pleading); don't let them skate by on loosey-goosey “notice” pleading, like they currently can. Or maybe return Rule 11 to its former form (pre-1993 Rule 11 imposed tougher standards on lawyers to aver that legal Complaints were true and nonfrivolous), and add a pair of canines.
In other words, do the practical things that make it harder for a lawyer to file suit without thinking. Don’t do the knee-jerk things that may feel good, but ultimately do more harm than good.
Of course, this will have the practical effect of making all suits harder to file but, to my mind, that's a good thing. Too many times I see plaintiffs -- including some large and very large corporations -- toss in silly patent claims or (even worse) near-sanctionable RICO claims as a settlement tactic. We ask lawyers to be zealous advocates; we can't expect them to exercise restraint in these things for the good of the whole. (It's the tragedy of the commons, perhaps.) They need a directive; they need a rule. Let's give it to them.
UPDATE: Kevin Drum maybe goes a bit to far in this post: "[The GOP views] Corporate lawyers: doing God's work. Plaintiff's lawyers: filing malicious and baseless lawsuits." On average, the quality of work at white shoe firms tends to be higher than the quality of work at up-and-coming "plaintiff lawyer" firms. Among other things, corporate firms have clients that expect -- and are willing to pay for -- better work from their lawyers.
Von,
Are you really askin' that ambulance chasin' Edwards to support the Class Action Fairness Act?!!?
If so, Von, could I borrow $500 from you? My, er, car, yeah that's it, my car needs a new, er, um, transmission. I promise to pay you back next, er, umm, next time, well, next payday.
Much obliged:)
Posted by: Navy Davy | July 07, 2004 at 04:40 PM
If so, Von, could I borrow $500 from you?
Hey, I just give the advice. And no.
Posted by: von | July 07, 2004 at 04:46 PM
That bastard ambulance-chaser! How dare he sully our justice system by getting negligent corporations to cough up money after their products maim children?
I don't know why I'm surprised at the instant, readied, feverish attacks on "Trial Lawyer John Edwards." I know just as well as Davy here does that if it were Gephardt they'd be bashing him for being a union stooge, if it were Clark they'd be denouncing Kosovo as a heap of war atrocities commited by a lunatic unfit for military service, if it were Jesus of Nazareth they'd be calling him a left-wing McGovernite peacenik with a suspicious history of hanging out with prostitutes, lepers, and the disreputable underclass. The GOP had a list of talking points ready and a small army of parrots to pass them to. Maybe I expected them to be a little deeper than a lame attempt to smear a vice presidential candidate with a taint of corruption based on his past history of fighting abusive companies when Dick Cheney currently squats in the center of - how many scandals at this point? Plame, Office of Special Plans, Energy Task Force, Halliburton, and those are just the ones I can think of off the top of my head!
Posted by: Iron Lungfish | July 07, 2004 at 06:04 PM
instant, readied, feverish attacks on "Trial Lawyer John Edwards."
Well, my attack was anything but feverish. I thought it wuz kinda humorous myself.
I know just as well as Davy here does that if it were Gephardt they'd be bashing him for being a union stooge,
No, I'd be bashin' him on his strange eyebrows!
if it were Clark they'd be denouncing Kosovo as a heap of war atrocities commited by a lunatic unfit for military service,
No, I don't recall any war atrocities, other than those committed by Milosevic. The policy of bombing Kosovo and trying Milosevic in 17 different international courts does give one pause for concern, though.
if it were Jesus of Nazareth they'd be calling him a left-wing McGovernite peacenik with a suspicious history of hanging out with prostitutes, lepers, and the disreputable underclass.
Nah, I'm kinda fond of my man Jesus. Hell, I'd vote for him!
The GOP had a list of talking points ready and a small army of parrots to pass them to.
Probably true. But I don't get 'em anymore, since I pissed them folks off by supportin' McCain in 2000.
Maybe I expected them to be a little deeper than a lame attempt to smear a vice presidential candidate with a taint of corruption based on his past history of fighting abusive companies...
You sound like Greta Garbo here. A little too melodramatic for my taste:) I vaaaant to be alone!
when Dick Cheney currently squats in the center of - how many scandals at this point? Plame, Office of Special Plans, Energy Task Force, Halliburton, and those are just the ones I can think of off the top of my head!
Energy Task Force was thrown out recently by the SCOTUS. He ain't a suspect in Plame-gate either. He is fat, though.
Sorry, I'm due back on planet earth, my friend. As for the POINT of this thread:
Do you think the Class Action Fairness Act is a good idea or not? I tend to think it is:)
Posted by: Navy Davy | July 07, 2004 at 06:17 PM
Shame "trial" lawyer isn't like trial subscriptions or free trial offers...
Posted by: Macallan | July 07, 2004 at 07:09 PM
Nah, I'm kinda fond of my man Jesus. Hell, I'd vote for him!
Hell you would, Navy. *grin* That peacenik hate-the-rich communist? If you could stand his politics, you'd hate him for being soft on terrorism.
Posted by: Jesurgislac | July 07, 2004 at 08:11 PM
Doesn't Shumer support the class action bill? I thought I read that somewhere. I'm just saying, some Democrats do. I don't know where Edwards stands on it, but I do remember that, as a presidential candidate, he proposed what I thought was a very good moderate tort reform policy that would have required concessions from both sides. GOP tort reform measures tend to place the burden entirely on lawyers. Given a fair reform, Edwards might go for it, if only to help him shake the "trial lawyer" label. If I had to guess, though, I would expect that Edwards won't even be in Washington for the class action vote. Frist wants to get it over with quick and Kerry and Edwards just started a four day swing state tour.
Posted by: Gordon | July 07, 2004 at 08:51 PM
Jimney Cricket Von, loser pays would even the playing field, along with field selection constraints.
Posted by: Timmy the Wonder Dog | July 07, 2004 at 11:05 PM
The problem isn't Edwards the trial lawyer per se. The problem is likely to be what Edwards has done to deserve the label sleazy trial lawyer. If he's been encouraging illegal bundling then Edwards turns from lawyer, tribune of the people to, ambulance chasing hack who doesn't care about the law and is a menace in government.
That's what the Bush campaign wants, not trial lawyer, but disreputable trial lawyer.
Posted by: TM Lutas | July 08, 2004 at 03:27 AM
to deserve the label sleazy trial lawyer.
The charge may be just, but it's my policy to categorically ignore Dick Morris.* When someone with an ounce of credibility makes the charge (the bar is low), I'll consider it.
Ad hominem, yes.
von
*For the record, I also categorically ignore (1) Oliver North (except to occasionally note that a convicted felon who allegedly lied to Congress is in no position to lecture anyone on patriotism) and (2) most of the far left.
Posted by: von | July 08, 2004 at 08:40 AM
Read Drum a bit more carefully. He was talking about an email quoted approvingly by the moronic Jonah Goldberg. Goldberg's correspondent, apparently a corporate lawyer, objected to the use of "trial lawyer" as a synonym for "plaintiff's lawyer."
The correspondent claimed that plaintiff's lawyers universally file "baseless and frivolous" lawsuits, while he, also a trial lawyer, spent his time nobly defending his corporate clients from these unfair and vicious attacks.
I don't think Drum's characterization of that view is overstated.
Posted by: Bernard Yomtov | July 08, 2004 at 10:28 AM
von, I can speak to this with professional authority--that's not an ad hominem. Not trusting someone on a matter of fact because he's devoid of credibility is a perfectly reasonable thing to do.
Posted by: Matt Weiner | July 09, 2004 at 12:20 PM