Kill the lawyers?

Robert Kuttner

September 14, 1992|By Robert Kuttner

The first thing we do, let's kill all the lawyers.

-- Dick, to a crowd of citizens seeking to overthrow the king, in Shakespeare's "Henry IV, Part 2" LAWYERS are chronically unpopular, for reasons not hard to fathom. Nobody likes red tape, and red tape is the lawyerly habitat. Moreover, it is the job of lawyers to know the rules better than ordinary citizens. And ordinary citizens suspect, often with good reason, that lawyers use their special knowledge to fleece the laity. As Carl Sandburg put it: "Why does a hearse-horse snicker hauling a lawyer away?"

Not until the 1992 presidential campaign, however, has one political party attempted to paint the other party as the captive of lawyers. But ever since the Republican National Convention, Vice President Quayle, and his wife, Marilyn (both lawyers, incidentally) have repeatedly depicted Bill Clinton and his wife, Hillary (also both lawyers), as tools of trial lawyers, who in turn allegedly cost the public money with frivolous litigation.

This curious Republican line of attack is worth deconstructing. It seems to have several strands, each of which falls apart upon examination.

First of all, polls and focus group results confirm that the public generally dislikes lawyers. So the Bush-Quayle campaign seeks to lump lawyers with other "cultural elites" (Hollywood types, politically correct college professors, civil libertarians, avant-garde artists) that the campaign associates with Democrats. Judging by the Quayle speeches, the GOP also seems to believe that the lawyer connection will reinforce the "Slick Willie" image.

There are some problems with this gambit. For one thing, Bill Clinton isn't a practicing lawyer; he's a sitting governor. And Hillary Clinton's best known work as a lawyer is her advocacy on behalf of children.

Strike one.

The second aspect of the lawyer-baiting is more arcane. For almost a decade, the business trade associations, the conservative press, and right-wing legal scholars have been beating the drums for something that they call "tort reform."

Tort reform is a polite term for the idea that companies that make dangerous products, or doctors who kill or maim patients, should not have to pay large damage awards. The Wall Street Journal editorial page, in particular, imagines a kind of conspiracy that has Ralph Nader on the take from trial lawyers who reap big fees from costly product-liability lawsuits. Liberal Democrats are supposedly in hock to the same trial lawyers, which is why they love to create new "rights" that in turn lead to lucrative lawsuits.

If America is a litigious mess, blame liberals in general and now Mr. Clinton in particular. This has been standard neo-conservative cant for several years, and William Kristol, Mr. Quayle's chief of staff, is a leading intellectual in the neo-con army.

When you parse the logic, however, this charge falls apart, too. Trial lawyers, of course, are active in both parties. According to Public Citizen, Ralph Nader's organization, nearly all of its money comes from its 120,000 dues-paying members, and less than 1 percent of its total income comes from members whose profession is lawyer.

The "tort reform" movement also grossly inflates the estimates of the cost of damage awards to American business -- estimates as high as $300 billion a year have been used. According to the National Consumer Insurance Organization, citing data by the U.S. Commerce Department and by A.M. Best Company, the total cost in 1991 of all product liability lawsuits, including attorney fees, was between $2 billion and $4 billion (compared to advertising outlays in the hundreds of billions). Legal costs incurred by American business to compensate consumers harmed by dangerous products are trivial compared to other everyday legal expenses of corporations, ranging from corporate takeovers, to lobbying, to patent infringement.

Most important, "tort reform" would make it much harder for ordinary people to collect when they are injured or maimed. In this respect, lawyers play the populist role of standing up for the little guy, while the GOP is allied with the corporate elite.

Strike two.

The most contradictory part of the story, however, concerns the real source of America's propensity to litigate. As conservative legal scholars keep pointing out, the common law is the counterpart to the free market. If two people have a dispute, they can settle it in court, without the meddling influence of legislators and regulators.

Unfortunately, it is the common law and the courts that have TTC given us occasionally astronomical damage awards. The alternative to the free-for-all of the courts is . . . government regulation. For it is regulation that forces producers to make safer products in the first place, thus protecting consumers and sparing both citizens and firms costly litigation.

Strike three.

None of this, to be sure, is to exonerate lawyers. But the vice president's clumsy attempt to indict the Democrats for the excesses of the legal profession should be thrown out of court.

Robert Kuttner writes regularly on economic matters.

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