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Tipping the scales

The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law, Walter K. Olson, Truman Talley/St. Martin's: 358 pp., $25.95

June 29, 2003|Philip K. Howard | Philip K. Howard, a lawyer, is author of, among others, "The Death of Common Sense" and "The Collapse of the Common Good." He is chairman of Common Good, a bipartisan legal reform coalition.

When I was in law school, a decade after the turmoil of the 1960s, the joke about bad justice was captured by Supreme Court Justice Potter Stewart's statement that he couldn't define pornography, "but I know it when I see it." We were taught that justice should not be paternalistic, presided over by judges applying values of right and wrong. Instead, judges should strive to be neutral, avoiding at all costs rulings that required a "value judgment." Let everyone make their arguments, and, whatever happens, at least we know the results weren't polluted by the judges' biases. Who are they to judge?

Walter K. Olson's new book, "The Rule of Lawyers," is about the legal entrepreneurs who emerged with this laissez-faire approach to justice. It is a dark story in which Olson lets the lawyers and facts speak for themselves as he guides us through levels of cynicism that may shock even a cynic.

The story starts with the golden promises of fairness for the masses through litigation. Purporting to represent thousands or millions of victims, these class-action lawyers sue corporate America over a wide variety of risks and vices of society, from asbestos to tobacco to fast food. The Robin Hood role they've assumed has timeless appeal. The modern twist is that they keep much of the money for themselves.

Richer even than Arianna Huffington's piggiest corporate executives, these entrepreneurial lawyers operate just at the edge of public recognition -- prominent members include Peter G. Angelos, who used proceeds of asbestos litigation to buy the Baltimore Orioles; Dickie Scruggs, the inventor (if that's the right word) of tobacco litigation; and Bill Lerach, the cherubic scourge of corporate America. They fly around in private jets, visit the White House (at least in the Clinton years) and laugh at the ineptitude of American government. Once asked if the trial lawyers were trying to run America, Scruggs replied that "somebody's got to do it."

As a lawyer who's been on the other side of some of these cases, I've often wondered how they get away with acting as self-appointed regulators of America. Yet there's undeniable charm to their audacity. I recently debated Scruggs at Yale Law School, where he asked, laughingly, to be introduced as "the richest and best-looking lawyer in America." The natural role model of these lawyers is Donald Trump. As for their self-interest, well, this is America. Who are we to judge?

Olson takes the reader into the inner sanctum of this new kind of lawyer: How the cases are brought, how these lawyers, like evangelists, spin a web of moralistic fervor that soon overpowers a judicial system that aspires to be neutral. Think of a hybrid between Elmer Gantry and Professor Harold Hill in "The Music Man."

Olson shows how in a justice system that honors the right to argue rather than right and wrong, literally any result is possible. The silicone breast implant cases, for example, were based on a supposition, as a lawyer argued, that the "ooze of slimy gelatin" must cause illness. A Houston lawyer named John M. O'Quinn took out advertisements asking "Are dream breasts to die for?" and sent a colleague on television to talk of "time bombs" in women's chests. O'Quinn went to juries arguing that companies that made silicone were "just plain evil," securing a verdict in one case for $25 million. Pretty soon his small law firm had thousands of cases, and he was negotiating million-dollar settlements for women whose only illnesses were unverifiable aches. The "truth" was supplied by a few experts who, without valid evidence, were willing to hypothesize terrible consequences. One doctor in Houston made $2 million per year selling his expert testimony and printed brochures for lawyers touting the benefits of his services.

But it was all a sham. In 1994, the New England Journal of Medicine published a Mayo study showing no link between implants and any illness. Several more studies in the next year confirmed these findings. Did the studies end the charade? Certainly not. In a judicial system in which almost any argument is allowed to go to a jury, authoritative studies were little more than an inconvenience, easily neutralized by experts-for-hire. The lawyers issued press releases saying studies showed the opposite. I keep thinking of "The Music Man," where pool halls were the supposed evil -- "Ya got trouble ... right here in River City ... Trouble with a capital 'T' and that rhymes with 'P' and that stands for pool!"

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