With its allies in charge of Congress, the plaintiffs bar is moving from playing defense to offense on Capitol Hill.

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By Bara Vaida, National Journal
© National Journal Group Inc.
Wednesday, Jan. 31, 2007

Alabama trial lawyer C. Gibson Vance was feeling confident. At a December 6 dinner in Washington, the treasurer of the newly renamed American Association for Justice boasted that with the end of 12 years of Republican rule on Capitol Hill, the plaintiffs bar was in the driver's seat.

Speaking at a symposium sponsored by the American Enterprise Institute and the Brookings Institution, Vance said that the AAJ (formerly the Association of Trial Lawyers of America) had played a role in electing a number of Democrats, and pointedly added, according to several members of the audience, "We are going to get things done."

The confidence comes after more than a decade of frustration during which the trial lawyers group lost a number of battles in Washington and in state capitals as Republicans and the business community pushed through measures to limit lawsuits. Most recently, Congress passed legislation in 2005 that required plaintiffs to file many class-action suits in federal court rather than state courts, where juries have been friendlier to plaintiffs.

Now the plaintiffs lawyers are armed with a new name, an expanded, hard-hitting communications team, and poll results showing that the majority of voters see combating corporate corruption as a top priority. The group is gearing up to beat back the business community's tort-reform agenda and to change laws and regulations that it says unfairly limit consumers' rights to sue. It also intends to aid Democratic committee chairs with planned investigations of the Bush administration's management practices.

"I am feeling very good for the public," Linda Lipsen, the AAJ's senior vice president for public affairs, said of the election results.

The trial lawyers raised and spent a lot of money in the 2006 election cycle. The association's political action committee contributed $2.4 million to federal candidates, with 96 percent going to Democrats and 4 percent to Republicans, according to the Center for Responsive Politics. The PAC spent a total of $6.3 million on the election, including contributions, advertising, and get-out-the-vote efforts, the center's analysis shows. The AAJ's individual members donated more than $20 million to Senate candidates. And to cap the group's success, 14 of the 18 House candidates who are trial lawyers won election, Lipsen said.

"The whole idea that 'trial lawyer' has some stigma attached to it was disproved by the fact that so many of these members faced vicious attacks ... and they won," she said.

The business community is bracing for the trial lawyers' push on Capitol Hill. The U.S. Chamber of Commerce's Institute for Legal Reform spent $101.5 million over the past eight years on federal lobbying for tort reform. (Over the same period, the trial lawyers group spent $30.72 million on lobbying.) The institute commissioned an Election Day poll that challenges Lipsen's assessment of public attitudes toward trial lawyers. When 800 voters were asked, "Who do you think benefits most from the current lawsuit system?" 74 percent responded, "Lawyers." The institute is running an inside-the-Beltway advertising blitz highlighting the poll results.

Institute President Lisa Rickard said that citizens continue to "believe there is too much litigation in this country and that Congress needs to go further with lawsuit reform." Victor Schwartz, general counsel at the American Tort Reform Association, said that the business community will try to make the case that the trial lawyers' agenda is about expanding avenues for lawsuits.

Trial lawyers do indeed have more friends in this Congress than they did in the last one. For example, newly elected Rep. Bruce Braley, D-Iowa, was a trial lawyer for 23 years. He is a member of the House Oversight and Government Reform Committee and plans to make use of his legal experience to grill witnesses who come before the panel.

The AAJ has also been building internally. Over the past year, the group tripled the size of its national and state communications staff and created a campaign-like war room. It built an opposition research and rapid-response team to fight the business community and has promoted the plaintiffs bar story as a champion of consumers.

In 2005, the AAJ hired Jon Haber,, a veteran Democratic operative and communications expert, as chief executive. Last year, the association brought on Democratic pollster Geoff Garin and strategists David Axelrod and Chris Lehane to bolster its message. "We are now in attack mode," said AAJ Vice President of Communications Chris Mather.

The group plans to move quickly, first by helping congressional committee chairmen with oversight hearings. For example, if Democrats hold hearings on the recent spate of poisonings caused by E. coli on fresh produce, or on negligence as a possible factor in the thousands of hospital deaths every year, the AAJ could provide specific cases of individual harm. "Our lawyers see these cases over and over," Lipsen said. "We'll serve the committees as resources on some of these injury cases."

The lawyers group is likely to move aggressively against proposals to loosen rules under the Sarbanes-Oxley legislation, which tightened accounting standards in the wake of scandals at Enron and other companies. The Securities and Exchange Commission is weighing whether to lift certain Sarbanes-Oxley restrictions that businesses contend have led to excessive litigation.

On the legislative front, trial lawyers want a measure to block the Bush administration from adding language to regulatory rule-makings that would pre-empt individuals' right to sue. The National Transportation Safety Board, for example, proposed a safety standard that would require auto manufacturers to make roofs that withstand certain conditions in the event of a vehicle rollover. The rule includes language that "pre-empts all of the state common-law remedies" if people die as a result of a crushed roof, Lipsen said. A half-dozen other federal regulations include similar language, she added.

Other AAJ-backed proposals would prevent settlement agreements that force a party in a lawsuit to keep quiet about any negligence that led to an injury and would stop companies from requiring individuals to accept mandatory binding arbitration rather than jury trials when they sign a contract. Some credit card contracts require individuals who sign for a card to go through arbitration in the event of a dispute, Lipsen said, but many people don't realize that by signing they have agreed to arbitration. Her group doesn't oppose binding arbitration, she said, but added, "People are getting rid of their own right to a jury trial, and they don't know about it."

Further down its priorities list, the AAJ advocates criminal penalties for company executives who knowingly produce and distribute defective products.

House Judiciary Committee Chairman John Conyers, D-Mich., said that Democrats will make decisions about bringing any of these measures to the House or Senate floor with an eye on 2008. He called items on AAJ's agenda "viable" but wouldn't say whether any would be a party priority.

"The question we have to ask is, 'How do these items fit into the larger theme of progress that gives us [Democrats] organization and unity?'" Conyers said in an interview.

In the Senate, Judiciary Committee Chairman Patrick Leahy, D-Vt., laid out an agenda that does not include tort reform. A spokeswoman said that Leahy is "pro-consumer" but declined to comment on whether the trial lawyers' agenda would have traction.

With Democrats holding a razor-thin majority in the Senate, Lipsen acknowledged that it will be "very tough" to enact the AAJ agenda and added that the trial lawyers will have to be "realistic."

Trial Lawyers Key Players: American Association for Justice; U.S. Chamber of Commerce Institute for Legal Reform; American Tort Reform Association On the Front Burner: Step up congressional oversight of corporate and government activities; block efforts to loosen Sarbanes-Oxley accounting rules; stop proposed government regulations that pre-empt the right to sue; oppose mandatory arbitration agreements Sleeper Issue:Legislation to allow criminal sanctions in product-liability cases -- Bara Vaida

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