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Marc Williams responds to my "Stockholm Syndrome" post

Occasional POL contributor Marc Williams (Nelson Mullens; immediate past president, DRI) responds to my September 3 post:

Recently Ted Frank took to task the lawyers who defend civil lawsuits for failing to be supportive of their clients' efforts at civil justice reform. Ted questioned why lawyers who defend civil cases aren't more vocal in their opposition to the abuses of the system. Additionally, he raised the intriguing question as to why corporate America isn't more insistent that their lawyers join them in advocating for civil justice reform.

He has a point. Defense lawyers are put in the unenviable position of advocating for the demise of the very work that they depend on to make a living. It is not beyond the pale to imagine that the lawyers defending lawsuits might secretly want to join with their brethren in the plaintiff's bar to advocate for the expansion of legal liability so that more lawsuits could be filed and thus, more billable hours could be spent. (This raises the issue of the folly of the billable hour and its inevitable demise, but I will put that discussion aside for another day). Unlike our colleagues in the plaintiffs' bar, whose advocacy for an ever-increasing liability scheme translates into a direct economic benefit via the contingency fee, defense lawyers' promotion of civil justice reform should carry more weight because of the potentially inverse economic relationship between their advocacy and the resulting available work.

I am not so naive as to believe that my colleagues in the defense bar, many of whom are in firms that have felt the impact of the recession, would hesitate to jump at opportunities for more work. The legal market is more competitive than ever, with an increasing number of lawyers and firms chasing a smaller pool of work. But I also know that many defense lawyers work this side of the case for a reason. Our ideological bent is more aligned with our corporate clients than with our colleagues across the litigation aisle. We are fiercely protective of the civil justice system and the jury trial that is its most unique component. But over the years, while battling in courtrooms across the country, we have seen the same abuses to the system that make our clients scream in outrage. Like most observers, we question the McDonald's coffee verdict and look cynically at the rabid justifications of the verdict from the ATLA mouthpieces. We scratch our head at the "justice" of class action settlements that provide the aggrieved plaintiffs with a coupon and their lawyers with millions in fees. We are troubled by the public perception of an elected judiciary that depends on campaign contributions from litigants and their counsel. We question a system of case discovery that makes dispute resolution so expensive that clients are forced to make economic decisions to settle claims that they objectively believe have no merit.

But if this cynicism exists, Ted asks, why aren't the defense lawyers doing something about it? The reality is that the organized defense bar is aggressively pursuing civil justice reform and has been instrumental in partnering with corporate America in pursing a myriad of systemic changes. The defense bar, made up of general membership organizations like DRI - The Voice of the Defense Bar, and invitation-only organizations like the International Association of Defense Counsel (IADC), the Federation of Defense and Corporate Counsel (FDCC) and the Association of Defense Trial Attorneys (ADTA), are vigorous advocates for civil justice reforms that strengthen the sytem. And while in the past our voice on these issues was not always directed at being the counter-balance to ATLA/AAJ, over the last decade we have committed ourselves to speaking out on civil justice issues and shedding light on the abuses to the system.

DRI - The Voice of the Defense Bar is the world's largest organization of lawyers who defend the interests of individuals and corporations in civil litigation. With 22,000 members in the United States and abroad, we take seriously our responsibility to live up to the mandate to be the voice on civil justice issues for our members. And while there are some DRI members who believe that our path should only be to protect their economic interests, the vast majority see our mandate more broadly: to protect and enhance the civil justice system by making sure that it operates fairly for all parties. As a result, DRI has spoken out in favor of a diverse number of issues such as the Class Action Fairness Act, preservation of preemption as a defense, merit selection for judges, judicial independence, strengthening of pleading standards, discovery reform and protective orders.

Along with the IADC and FDCC, we formed Lawyers for Civil Justice (LCJ), an organization of corporate counsel and outside counsel who advocate for civil justice reform at the state and national level. Together, defense lawyers and our corporate partners have worked on federal rule and legislative reform in a myriad of areas and are currently engaged in advocating for the most dramatic change to the Federal Rules of Civil Procedure in the last 40 years.

In 2004, DRI reached into the field of judicial education by forming the National Foundation for Judicial Excellence (NFJE), a charitable foundation tasked with providing educational training to state court appellate judges on issues of importance to the defense bar and their clients. For the last six years, between 110 and 130 judges from across the country have met in Chicago each summer to hear a balanced discussion of such issues as scientific evidence, punitive damages, preemption, nuisance and judicial independence.

In Ted's piece that gave rise to this tome, he pointed out that defense lawyers were not forceful enough in addressing the AAJ's efforts to use the ABA to reverse decades of policy in the field of federal preemption. To the contrary, DRI and its sister organizations all advocated publicly and privately for the ABA to reverse its endorsement of the AAJ-backed legislation that would have stripped the preemption defense from many cases. When the ABA position on this issue surfaced, DRI published an open letter to then-ABA President Tommy Wells (a friend and a DRI member) encouraging the ABA to reverse its course. When President Wells appointed a task force to address the question of what the ABA's position should be on preemption, DRI was invited to participate in a symposium on the issue. Along with other interested parties, we presented our position on the value of preemption as a concept and as a legal defense. We continued to monitor the matter through the report of the ABA task force and through the ABA House of Delegate's adoption of a revised policy this past August. In order to further our thought leadership on this important issue, we are drafting a white paper on preemption for publication this winter.

A more interesting aspect of Ted's discussion of the role of defense lawyers in the civil justice debate was the provocative question of why clients do not insist that their lawyers join them in advocating for civil justice reform. I know of one large company that is very proactive in dealing with litigation matters. As part of its performance review of outside counsel, effectiveness, communication and economic metrics are used to evaluate the firms. But this company has also added another criterion to the mix. The firms are evaluated on the extent of their "strategic advocacy" which is defined as their efforts in partnering with the company on issues like legislative initiatives, civil justice reform and political action. By elevating this criterion to the same level as the predictable measures of cost and effectiveness, the company is sending a clear message to their lawyers: we want you to partner with us not only in the defense of our litigation, but also as an advocate for the issues that we find most important. While I doubt that most companies are as direct in their expectations for their lawyers, as Ted would ask, Why Not? We are all stakeholders in the efficient and effective operation of the system. And why not reward those whose values match yours?

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Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.