Are Lawyers Running America?

MARK RICHARDS FOR TIME
FRED FURTH: When he isn't winning antitrust cases, he's making wine at his 1,200-acre Chalk Hill vineyard in Sonoma County, Calif.

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Leaving important public-policy decisions to elected branches might make sense, trial lawyers say, if those branches did their jobs. But they are so indebted to special interests--including Big Business and the National Rifle Association--that they tend to stay gridlocked. After the shooting rampages at Columbine and elsewhere last year, a large majority of Americans support new controls on firearms--yet Congress has passed no new gun laws.

At almost every stop in his bid for the G.O.P. presidential nomination, Senator John McCain of Arizona asked, "Why can't we get HMO reform? Because the Republicans are in the grip of the insurance companies, and the Democrats are controlled by the trial lawyers." McCain adds today that Congress "can't get anything done [on the Patients' Bill of Rights], so what is Dickie Scruggs doing? He's suing the HMOs. Is Dickie Scruggs doing the right thing? No. But do you blame him? No." Scruggs adds that "we wouldn't have made the progress we've made in civil rights in this country without the courts' acting when the Legislative Branch wouldn't."

Plaintiffs' lawyers say their fees are justified by the amount of their own money they risk--knowing they will be paid nothing if they lose. In Mississippi alone, 12 law firms laid out about $12 million on that state's suit for research, travel, depositions and other expenses. "When we filed the tobacco lawsuits, our peers--good lawyers and great lawyers--laughed at us," says Reaud. "They told us there was no way we were ever going to win." Scruggs put almost all his financial assets at the time--about $3 million--into the case. "Some of us get paid amounts that are hard to justify," he admits, but so, he says, do many other professions today, from prizefighters to Internet entrepreneurs. Levin concedes his firm's $300 million take was "totally obscene" and says he's giving much of it to charity.

As for their campaign contributions, trial lawyers insist their opponents give more. Last year tobacco companies contributed nearly $1.7 million to the Republican Party. The NRA gave $478,100. "We are in a real fight, and we are the only people on this side of the fight with any money," says Mike Gallagher, a Houston trial lawyer. "Labor unions don't do it. Consumer groups don't do it. I give a lot of money, and I plan to give a lot more."

On most issues, Bush and Gore seem to be trying to meet in the political center, yet they disagree sharply over the role of plaintiffs' lawyers. Bush pushed a sweeping tort-reform package through in Texas in 1995, including caps on punitive damages. Gore has opposed tort reform and has lately presented himself as a populist enemy of "big drug companies" and "big oil."

It could get ugly. In fact, it already has. Last fall during a congressional fight over the right to sue HMOs, the managed-care industry broadcast TV commercials showing a shark feeding as an announcer said archly, "America's richest trial lawyers are circling--and your health plan is the bait." The trial lawyers, for their part, recently targeted Senator Conrad Burns, a Montana Republican, for sponsoring a bill that would make it harder to sue asbestos manufacturers. Their ad featured a Montana woman walking in a graveyard and accusing Burns of "standing up for the people that made me sick and killed my father."

On the same road trip that took Scruggs to the meeting of Connecticut doctors, he dropped in on a Washington law firm to address a less-friendly group: lawyers who represent insurance companies and HMOs. He came to tell them it was in their clients' interest to settle. "One of these days, one of the industry's lawyers in court someplace like Jefferson County, Miss., is going to call headquarters and say, 'This jury just returned a $1 billion verdict,'" Scruggs said. "Just think what that will do to the company's stock."

If he was trying to scare his audience, it seemed to be working. One lawyer, perhaps hoping his own clients would be able to dodge the Scruggs juggernaut, asked if the wave of managed-care lawsuits would ever reach smaller HMOs. "Man, we're going to sue everybody," Scruggs said as the room filled with nervous laughter. "You have somebody in mind?"