New Name, New Strategies
At the end of a long, intensely political day last July at a convention in Seattle, Jeffrey Breit and a couple of other members of the board of governors of what then was the Association of Trial Lawyers of America visited the Purple Cafe and Wine Bar, a trendy downtown watering hole. Along with drinks, the bartender eventually served up a question: What do you folks do?
“We decided to try an experiment,” says Breit, a prominent plaintiffs lawyer from Norfolk, Va. “I said, ‘I help people who’ve been injured by defective products. I investigate the problem and try to get the product off the market. And I try to get money for the person who was hurt.’ ”
The bartender leaned closer. He heard something similar from the guy sitting next to Breit, Charles J. Zauzig III, who becomes president of the Virginia Trial Lawyers Association in April.
“I told him I help people who have been injured at the hands of doctors,” Zauzig says.
The bartender asked how they do this.
“We sue the people who did it to them,” Breit replied.
“Oh, you’re lawyers,” said the bartender.
And he was a one man focus group. The lawyers asked whether he would have been less interested had they mentioned up front that they were trial lawyers. Yes, the bartender said. But the way they described what they do was compelling.
That was pudding and proof for what Breit, Zauzig and others had done by vote earlier that day: changed their group’s name to the American Association for Justice.
“We tip our hat to the insurance companies and others in corporate America who spent millions of dollars over a lot of years to poison the well for the name trial lawyer–and with some other choice terms they’ve bestowed on us,” says Breit. “But now we’re going to be telling people what we do, instead of just labeling ourselves with a title. The other side won’t find it so easy coming after us if they have to talk about what we do.”
The new name itself obviously aims at just that. But there is a lot of juju out there to overcome concerning what they are, and it has magical power to darken even the best of what they do.
The buzzwords fly freely: greedy trial lawyers. Lawsuit lottery. Jackpot justice. Lawsuit abuse. Junk lawsuits. McDonald’s coffee case. Runaway juries. Tort tax. Judicial hellholes.
“It’s a daunting task for the trial lawyers to turn back what the other side has done in lobbying the public mind for decades,” says Stephen Daniels, a senior research fellow with the American Bar Foundation.
“They haven’t done it with cold, hard facts or empirical research,” he says. “They’ve done it the way you sell a product, continually feeding the beast with surveys, focus groups, graphics and metaphors, selling emotion and anxiety to create fear–a fear that can only be allayed by tort reform. They’ve been geniuses at setting the terms of the debate.”
ATLA officially became the AAJ on Dec. 11, according to the AAJ Web site (which at press time was still at atla.org). But when the decision was first announced in July, there was a flurry of cutting responses from opponents.
“Today’s vote by the Association of Trial Lawyers of America to change its name to the American Association for Justice is an astounding admission of the unpopularity of trial lawyers in America,” said Lisa Rickard, president of the Institute for Legal Reform, a lobbying arm of the U.S. Chamber of Commerce, in a prepared statement.
The better sound bite that made it into some news stories was from Victor Schwartz, the Washington, D.C. based lawyer lobbyist long involved in tort reform: “If a shark called itself a kitten fish, I still would not put my goddaughter in to play with it.”
But the snorts and chuckles of mid July died down quickly. There is a lot more going on as far as style, substance and direction are concerned. And critics of the newly named American Association for Justice recognize that.
Schwartz expects AAJ leaders to go beyond seeking to roll back tort reformers’ gains of recent years and “try to increase their market share, create new markets, especially at the federal level–such as criminalization of product liability in some circumstances. That would help their civil cases.”
In last fall’s congressional elections, 14 trial lawyers won seats in the House.
Most tort law, however, is a matter for the states, and the AAJ’s opponents are looking for the group to follow the playbook that tort reformers have used at the state level–work at getting public officials friendly to the cause in all three branches of government. That would open the door for moves to repeal laws enacted over the past decade or so reining in lawsuits.
The AAJ isn’t saying just yet what it plans to do, but it has already taken some major steps. The 56,000-member group replaced its executive director of 17 years, Tom Henderson, in February 2005 with a different sort of leader. Henderson had hewed to the group’s member education efforts and more reserved legislative moves.
The new executive director, Jon Haber, 52, comes with a deep and scrappy background mix of politics and public relations. His political resumé is left wing progressive with an East Coast West Coast span. From 1989 to 1992, Haber was counsel and communications director for the Senate’s Agriculture, Nutrition and Forestry Committee, chaired by Sen. Patrick Leahy, D Vt. And Leahy has stepped up to the chairmanship of the Judiciary Committee with the Democratic retaking of the Senate. Haber was also briefly chief of staff to Sen. Dianne Feinstein, D Calif. And he worked on presidential runs by Edward Kennedy, Walter Mondale, Richard Gephardt, Bill Clinton and Howard Dean.
Most recently, Haber headed the Washington, D.C., division of the international PR giant Fleishman Hillard. And early in his career he practiced law for four years in California, working on civil matters, but defense side.
Several months after Haber’s arrival, ATLA’s communications specialist of many years, Carlton Carl, was shifted to vice president for public policy and replaced in the media role in June 2005 by Chris Mather. In recent years, she worked on congressional campaigns, Senate and House, in Illinois and New Jersey. And she previously was deputy political director for NARAL Pro Choice America, the group on whose battlefield PR is pure politics.
Though Haber and Mather decline to offer details of upcoming initiatives for framing the issues, they don’t deny the group is going on the offensive. And the AAJ has plenty of arrows in its quiver for upcoming initiatives to demonize corporations and their leaders. Some of the outlines of what is to come, though, can be divined from points they make in interviews, from a newly released communications plan and from the group’s first ever “issue advertising” during recent congressional elections. The ads attacked Republican candidates’ ties to big oil and pharmaceutical companies. (The group previously was involved in issue advertising only as part of coalitions.)
“We’re going to be letting people know that negligent corporations don’t want to be held accountable,” says Haber. “And that the civil justice system is their last resort for [avoiding accountability]. We’re going to talk about the U.S. Chamber of Commerce being a front group for some of the biggest corporations trying to avoid accountability.”
The AAJ is only now reacting to the gauntlet thrown down by the chamber in 1997, when the brash and combative Thomas J. Donohue came in as president with a plan to shore up sagging membership numbers: Attack the trial lawyers. He created the Institute for Legal Reform in 1998 to do just that. According to its mission statement, the ILR conducts “federal and state legislative reforms, voter education efforts, public education campaigns and grassroots activation.”
ILR president Rickard did not respond to requests for interviews.
Battle of the Budgets
In terms of dollars, the AAJ is now fighting in a higher weight division. In 2004, a presidential election year, the ILR spent $24.5 million on lobbying, and its parent the chamber spent $28.8 million doing so, according to statistics gathered by the Center for Responsive Politics, a Washington, D.C.-based group that tracks money in politics and gauges its effect on elections and public policy. ATLA spent $5.2 million.
In 2005 the ILR spent $19.7 million, and the chamber itself $19.1 million, compared to ATLA’s $7.2 million. There is no tally for spending by individual trial lawyers or state and local trial lawyer groups, just as there is no comprehensive one for business interests. But many believe trial lawyers, both organized and individually, can’t come near matching the other side dollar for dollar.
The AAJ’s new comprehensive communications plan, The Fight for Justice Campaign, says in its foreword that much of its effort will be to “identify our opponents, highlight their true motives and blunt their attacks.” This includes a newly created “opposition research operation” as well as a “war room” and “rapid response” hotline to answer opponents’ claims. Those efforts include training already under way for staffers in state trial lawyer groups.
And the group expects to continue running issue ads such as those used in selected jurisdictions for the November elections. The Fight for Justice Campaign plan says: “Our ads are hard hitting and tell the story of corporate executives who put company profits ahead of the health and welfare of all Americans. And we’re exposing politicians who are more beholden to the special interests than their constituents.”
Though now seeking to reframe the debate over what they do, members of the organized trial bar have spent plenty of time in the past debating their name among themselves. They’ve changed it four times since first getting together in 1947. In the beginning, a few dozen workmen’s compensation lawyers formed the National Association of Claimants’ Compensation Attorneys. It wasn’t long before they branched out beyond workers’ comp, especially through sheer force of personality of the late, fabled Melvin Belli. He became the still young NACCA’s president in 1951. Three years later he was dubbed “The King of Torts” by Life magazine.
Support for the Judiciary
Belli and others worked at moving regulatory functions out of the hands of governmental administrative agencies (where they had largely gravitated as part of President Franklin D. Roosevelt’s New Deal in the 1930s) and back into the courts. Personal injury cases got particular emphasis.
Reflecting that broader umbrella, the group changed its name to the National Association of Claimants’ Counsel of America in 1960. In 1964, the name was reworked more significantly into the American Trial Lawyers Association. But that change eventually led to the delicious irony of a lawsuit by the American Academy of Trial Lawyers, which argued the brand was too similar to theirs. So in 1972 the group adopted the more cumbersome Association of Trial Lawyers of America.
• ATLA was, and the AAJ largely still is, mostly about education and training for its members, especially as a nexus and clearinghouse for information useful in specific litigation. The AAJ has scores of litigation groups sharing experiences and documents in areas such as fen phen diet pills, tap water burns, liquor liability and hormone therapy. There is little substantive policy discussion and debate.
It is probably no coincidence that at the same time that Belli was leading the trial bar into more aggressive approaches to torts, the insurance industry was rolling out advertising campaigns to protect and further its own interests. In a series of full page advertisements in the Saturday Evening Post in 1953, for example, the national jury pool was targeted with messages about heavy damage awards leading to higher insurance rates for everyone.
As one ad put it: “Excessive jury awards, rendered by jurors who feel they can afford to be generous with the ‘rich’ insurance company’s money … (are) soaking you by raising insurance rates.”
Still, trial lawyer clout continued to grow. They were helped immensely, according to ABF scholar Daniels, by changes in tort law in areas such as strict liability, contributory negligence and admission of testimony by medical malpractice experts from outside localities.
Many trial lawyers started measuring ability and success by the size of their verdicts, regardless of outcome after appeals. Some formed elite groups for those who won million dollar verdicts. The Inner Circle of Advocates, for example, is an invitation only club of 100, and criteria include at least 50 jury trials and three or more verdicts of $1 million or greater, or one verdict of at least $10 million.
But the war ramped up with a long and continuing string of successes by the U.S. Chamber of Commerce, which has spent tens of millions of dollars in stepped up tort reform efforts since 1998. Much of that money and effort has gone into legislative lobbying and state and federal elections.
“It had been obvious for a long time that the other side was having an impact,” says Larry Stewart, ATLA’s president in 1994 95. During those two years, according to Daniels, the public’s opinion of lawyers was at its nadir. Stewart appointed a committee during that time to find out why trial lawyers around the country were losing cases on the same facts and law that had held sway a decade earlier.
The committee ended up working for several years through the efforts of two members, Gregory Cusimano of Gadsden, Ala., and David Wenner of Phoenix, who continued the work with scores of focus groups around the country.
“Everywhere we went, all over the country, people in focus groups were using the same words and phrases, such as personal responsibility, lawsuit lottery and tort tax,’ ” says Wenner. “People don’t talk like that out of a vacuum. They’d use the words we’ve all seen in tort reform ads, and it was no coincidence that people in Portland, Ore., were saying the exact same things we heard from those in Charleston, S.C.”
“It didn’t take a social scientist to figure out what was occurring,” Stewart says, “but we didn’t have a handle on the depth of impact, its real dimension or what we could do about it, if anything. The name change and new initiatives are part of the continuum from their work.”
On the business end of that continuum, the new blood at the top of the AAJ’s staff, Haber and Mather, clearly are game for today’s rough and tumble mix of politics and PR. It can be nuanced, but also very much a professional wrestling style melodrama, particularly in 21st century Washington, D.C.
Last April, President Bush told a gathering of small business owners, “The frivolous lawsuits, this plethora of lawsuits, is running up the cost of health care for you.” Haber issued a news release that day (see “Fighting with Footnotes,” page 42) chocked with statistics countering the argument that litigation drives away physicians and drives up health care costs. And he jabbed back.
“So it appears the ‘plethora of lawsuits’ the president referred to,” he wrote, “must be buried out there somewhere with the weapons of mass destruction in Iraq.”
“The thing about Jon [Haber] is that he tends to rise to the sound of the guns,” says William Black, a former colleague at Fleishman Hillard. “He likes the fray.”
That is not lost on the other side. “I realize these are very smart and sophisticated people,” says Schwartz. “If the tort reform side sticks to its old playbook, these people could have some success. They’re not just changing their name, they’re changing the definition of the debate.”
All is Politics
Finger-pointing over election and lobbying funds seems never ending for both sides. For decades, many successful plaintiffs lawyers spread the largesse around, mostly to Democratic candidates and particularly, in state elections, to judicial candidates. “We can’t track their contributions as much as in the past because of changes in campaign finance laws,” says Sherman “Tiger” Joyce, president of the American Tort Reform Association. “But we know the money moves.”
The trial lawyers learned a lot about ATRA’s funding in the “tobacco papers” released in 1999. Those internal documents from the tobacco companies and others were made public as part of the master settlement agreement between the four biggest tobacco companies and 46 states.
The documents showed, for example, that ATRA received $5.5 million, more than half its budget, from Big Tobacco in 1995 alone.
The documents also indicated many of the citizen based, grassroots groups in a number of states, often called Citizens Against Lawsuit Abuse, were started and funded by ATRA or others largely using tobacco money.
Trial lawyer money has its own storied history in politics. During the so called second wave of tobacco litigation, which began in the 1980s, corporate defendants shuddered at actually seeing and hearing what they knew to be true. There was famed Houston trial lawyer Joe Jamail on CBS’ 60 Minutes in 1987 bragging about the hundreds of thousands of dollars he had given Supreme Court of Texas candidates over the years. He had recently seen his $10.5 billion verdict for Pennzoil against Texaco upheld by the high court, without even a hearing.
It should be no surprise that Big Tobacco and others stepped up efforts to minimize their exposure in the courts. The earliest Citizens Against Lawsuit Abuse initiatives began in southwest Texas, a region known for plaintiff friendly juries.
The Effect on the Left
More recently it has been no secret in republican circles that fencing in the trial lawyers through tort reform could have a direct impact on Democratic coffers.
One of the most influential leaders of the modern conservative movement, the anti-tax activist Grover Norquist, wrote in the The American Spectator magazine in 1999: “Modest tort reform … would defund the trial lawyers–now second only to the unions, and this is debatable–as the funding source of the left in America.”
Frank Luntz, the Republican pollster who fine tunes political messages (such as the term climate change to cool the heated sound of global warming) had a chapter on attacking trial lawyers in his 1997 book titled Language of the 21st Century. The chapter on “Legal Reform” included these nuggets, under the heading “The Villain”:
• “It is almost impossible to go too far when it comes to demonizing lawyers.”
• “Talk about the hidden costs of our out of control civil justice system.”
Luntz is called a pollster, but he is more a phrase framer. (Critics call him a propagandist.) And he is best known for using instant response dial technology, with which focus group members turn dials on handheld devices to indicate immediately their positive or negative responses to various words and phrases. This is how Luntz framed much of the Republicans’ Contract With America, which helped them gain control of both houses of Congress in 1994. He measures emotional responses to images and ideas. Now he does it more for corporations than for politicians.
In an interview, Luntz offered to handicap the AAJ’s new initiative to reframe the debate. (He found more than a decade ago that personal injury lawyers got more traction for his side than trial lawyers. It is President Bush’s term of choice when talking about tort reform.)
“It will take a while, and it takes more than just a change in language,” Luntz says. “It requires a change in emotion and passion. They have to be passionate. Bad language will wreck you, but good language will help you only if the emotion is there. … It’s not so much what you say, but what people hear.”
And he offers more granular advice.
“They have to undertake serious self examination of how the worst 10 percent in the organization define it for the best 90 percent,” he says. “That is the problem that will seriously hinder their ability to change their image. Watching those late night advertisements is how I came up with personal injury lawyers. The term reminds of two things: late night advertisers and ambulance chasers. And [the AAJ] can’t get around either.”
Prominent trial lawyers themselves have led efforts to rein in the advertisers, who often are brokers selling marketable lawsuits to lawyers who actually will go to trial. While most of the organized trial bar find such ads offensive, there is little they can do because of First Amendment rulings by the courts.
Some trial lawyer critics point beyond bottom feeding advertisers, though, to the mass tort bar, which recently gained notoriety in the silica multidistrict litigation in Texas. A federal judge declared that lawyers and physicians working with and for them had come up with diagnoses that were “driven by neither health nor justice: They were manufactured for money.” She sent the cases back to the various state courts. In re: Silica Products Liability Litigation, MDL Docket No. 1553 (S.D. Texas, 2005).
“We’re not talking about the late night advertisers; we’re talking about the upper echelon of the tort bar generating billions in fees in what the judge found to be, in effect, a fraud,” says Lester Brickman, a professor at the Benjamin N. Cardozo School of Law.
Many AAJ state affiliates joining in efforts to overcome these challenges still have trial lawyers in their names. Some are expected to make name changes similar to the AAJ’s; Florida and Louisiana groups voted to do so after ATLA’s decision in July. Others made earlier moves, such as the Consumer Attorneys of California.
Whatever the name, they all should expect their new efforts will have them in a long haul.
“Most of what we do can’t be put on a bumper sticker,” says Leo V. Boyle of Boston, a former ATLA president. “This will take time.”
Terry Carter is a senior writer for the ABA Journal. His e mail address is [email protected].
The group known until recently as the Association of Trial Lawyers of America has undergone many name changes.
They are: 1947 National Association of Claimants’ Compensation Attorneys
1960 National Association of Claimants’ Counsel of America
1964 American Trial Lawyers Association
1972 Association of Trial Lawyers of America
2006 American Association for Justice
Fighting with Footnotes
In an April 2006 press release, ATLA CEO Jon Haber responded to televised comments by President Bush criticizing the civil justice system.
Citing sources (and using footnotes), Haber presented the following statistics to counter arguments about “junk lawsuits” and their effect on the medical community:
• According to data from the American Medical Association, the number of physicians is up nearly 90 percent, from 467,679 in 1980 to 884,974 in 2004. In addition, the number of emergency room doctors has increased from 5,699 in 1980 to 27,864 in 2004, an increase of 388 percent. The number of ob gyns has increased nearly 60 percent, from 26,305 in 1980 to 42,059 in 2004.
• According to the Government Accountability Office: “Physicians reportedly practice defensive medicine in certain clinical situations, thereby contributing to health care costs; however, the overall prevalence and costs of such practices have not been reliably measured. … Given their limited scope, the study results cannot be generalized to estimate the extent and cost of defensive medicine practices across the health care system.”
• A study of medical malpractice insurers titled Falling Claims and Rising Premiums in the Medical Malpractice Insurance Industry has found that insurance companies have been price gouging doctors by drastically raising their insurance premiums, even though claims payments have been flat, or in some cases decreasing. The study, conducted by former Missouri Insurance Commissioner Jay Angoff for the Center for Justice and Democracy, a consumer advocacy organization, compiled data from the 2004 annual reports of the 15 largest insurance companies; those reports are filed under oath with state insurance departments.
The Justice Department reported last year that the number of tort (personal injury) cases resolved in U.S. district courts fell by 79 percent between 1985 and 2003. In 1985, 3,600 tort trials were decided by a judge or jury in U.S. district courts. By 2003, that number had dropped to less than 800.
According to the most recent data from the Justice Department’s Bureau of Justice Statistics, the number of tort trials at the state level has decreased. These statistics were compiled as part of the bureau’s survey of state civil justice systems in the nation’s largest 75 counties. Among these counties, the number of tort trials decreased 31.8 percent between 1992 and 2001.