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Trial Lawyers, Inc.: K Street -- Public Relations



For the third installment on the Trial Lawyers, Inc.: K Street report, I'm going to discuss, briefly, the lawyers' public-relations activities. For a fuller discussion, see this section of the report, online.

Trial lawyers realize they aren't popular--as their decision to re-brand themselves the American Association for Justice would suggest. Opinion-poll data suggest that the broader public is largely disaffected with the legal system: "Eighty-three percent of Americans think that the legal system makes it too easy to assert invalid claims." For a group wholly dependent on government power to make its money, a negative public opinion presents a significant problem for the trial bar.

The plaintiffs' bar works to counter public skepticism with a sophisticated public-relations operation. First, the trial bar develops a veneer of legitimacy through its web of ties to the legal academy; although the general public isn't much aware of what legal academics do, they're highly influential over judges, policymakers, and the elite media. Next, lawyers aggressively court the media directly, by feeding them stories that agitate public opinion in favor of litigation. Finally, lawyers heavily fund various purportedly independent "consumer groups" that work in conjunction with media coverage to further drum up public-safety concerns--and directly argue against legal reforms.

  1. Legal academics. The trial bar discovered early on that befriending influential leaders in the legal academy could work to its advantage. The King of Torts Melvin Belli befriended former Harvard Law School dean Roscoe Pound, when the professor was in his 70s. In his later years, Pound had shifted from being a common-law critic to its fiercest advocate, largely because he was skeptical of the New Deal, and "he came to view the common law of tort as a substitute for the bureaucratic state." By 1958, Pound "worried aloud that those pushing for expansive strict product liability were 'not looking squarely at all the facts' and that such a program would have 'consequences beyond the law of torts.' Roscoe Pound, The Ideal Element in Law 340 (1958)." But the damage was done: Pound had penned a "glowing introduction" to Belli's book Modern Trials in 1954, and the trial bar had established a think tank in his name, the Roscoe Pound Civil Justice Institute, in 1956. The organization that bears Pound's name continues to conduct judicial seminars and publish papers supportive of expanded litigation.

    As we note in the K Street report, "The tort bar continues to cultivate relationships with academics who are willing to speak on its behalf." In many cases, professorial apologists for litigation are not the disinterested observers their university affiliations might suggest: "Law professors can [and do] earn hefty sums as 'expert' witnesses by giving an academic seal of approval to mass-litigation settlements, dodgy fee arrangements, and questionable theories of injury." I want to emphasize that I'm not trying to accuse the litigation-industry apologists in the professoriate of venality; most of these law professors are genuine believers in the views they espouse. But the trial-bar regularly levels ad hominem broadsides against its critics: the communications director of the American Association for Justice attacked the K Street report by calling the Manhattan Institute a "front group" for "insurance companies and Wall Street banks." Such attacks are even shallower than they appear when one considers how much money many law professors are getting from their trial-bar ties, often undisclosed: "the same trial bar that attacks any study even partly funded by industry tries to obscure its own role in enriching its ivory-tower advocates."

  2. Media. The trial bar also aggresively works the media to its advantage. Unlike professors, reporters aren't being funneled any money in litigation. But reporters do want to break the next "big story" detailing public danger, which wins them acclaim. For every scare that is legitimate--if often far less dangerous to most consumers than public hysteria would suggest--there are others that are "phantom risks," like breast implants or Bendectin. For the reporter, it matters little if the stories are founded in sound science: they're unable to tell the good from the bad, so they take what the lawyers feed them, uncritically. John Stossel, who won nineteen Emmy Awards as a consumer reporter, details the game:
    This partnership between reporters and trial lawyers is not a good thing, but it's hard for us reporters to resist, because trial lawyers are a perfect source. They do most of the work for us. We don't need to make phone calls to search for victims; the lawyers identify the most telegenic of them, the people whose stories make you cry, and they'll bring them right to our office.

    Then they identify the "bad guy" for us. We don't need to do much original investigating, since the lawyers use their subpoena power to force companies to turn over just about every record they've ever produced. The lawyers usually find some dirt (bet they'd find dirt on you if they got all your papers) and hand it to us. We double-check it, but we're following the lawyers' script.

    These consumer-media reports are reinforced by television and movie scripts that lionize trial lawyers' role in exposing and fighting corporate wrongdoing (think movies like The Rainmaker (1997, with Matt Damon), A Civil Action (1998, with John Travolta), Erin Brockovich (2000, with Julia Roberts), or The Runway Jury (2003, with Dustin Hoffman); or television shows like Ally McBeal, The Practice, and Boston Legal). Although such mythological portrayals do not undo broad public skepticism about our legal system, they do undergird the trial bar's defensive efforts by maintaining the illusion that plaintiffs' lawyers are the last, best, and only reliable protector of a vulnerable public.

  3. Consumer groups. The K Street report also details the symbiotic relationship between the trial lawyers and various "consumer groups" that purport to be independent watchdogs of corporate misbehavior. Some of these groups exist solely to defend tort litigation, like Citizens for Justice and Democracy (which headed by Ralph Nader disciple Joanne Doroshow). But groups with broader missions nevertheless work hard to help the lawyers: "Public Citizen, for example, pushes Trial Lawyers, Inc.'s agenda directly, through its Litigation Group, which fights preemption of tort claims, arbitration clauses, and other issues adverse to the interests of the plaintiffs' bar; and indirectly, through its Health Research Group, which publicly attacks the safety of hundreds of drugs and medical devices that are the bread and butter of the mass-tort bar."

    As the K Street report details, these consumer groups are often heavily funded by trial lawyers: "prominent California plaintiffs' attorney Herb Hafif has said that the trial bar supported Nader 'overtly, covertly, in every way possible.' " Again, I do not mean to suggest that pecuniary interests drive consumer groups' activities--"many of 'Nader's Raiders' and their successors are true believers in their cause"--but the consumer groups can ill-afford to offend their legal benefactors. And the leading consumer advocates' admiration for the trial bar is profound: Ralph Nader has long planned to build an American Museum of Tort Law in his hometown.


The trial bar's public-relations activities blunt public pressure for liability reforms and offer a metanarrative for elected officials who do the tort bar's bidding. Tomorrow, I'll begin to explore just how the tort bar is wielding its political influence, at the state level.

 

 


Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.