YOU can say what you like about George Bush Jnr: dim bulb, fearless terror fighter, creature of the sinister Dick Cheney, palterer, great and powerful friend of the statesman distressingly referred to as Jackie the Lackey. Whatever. But George is surely on the right side of the tort reform argument.

At bottom, the argument for and against is the same: a cap on payouts means more money for victims and less for trial lawyers.

Grover Norquist, a pal of George’s strategist, Karl Rove, recently said: “With another four years of Bush we’ll get tort reform — which will cost the trial lawyers millions of dollars.”

With trial lawyer John Edwards a chance to take Cheney’s job, we can safely assume that the American Trial Lawyers Association will sharply increase the millions it traditionally flings at anti-reform Democrats. 

The Great Tobacco Wheeze, as reported by Walter Olson in The Rule of Lawyers (St Martin’s Press, 2003), confirms the need for at least some check on trial lawyer avarice.

The Surgeon General warned in 1964 that smoking is a risk. Thereafter, most tobacco suits failed on the ground of personal responsibility, but in 1993 Mississippi’s (Democrat) Attorney General, Michael Moore, learned how to shift the goalposts from private to public victims, i.e. taxpayers who contributed to Medicaid funds used to care for sufferers.

A similar approach would presumably get heaps for Australian lung cancer and heart disease wards, but our Attorneys General would need to run the action differently from Moore. Instead of using his salaried lawyers to develop a Medicaid case, he gave the work to a private lawyer, Dickie Scruggs — plainly a Dickens’ invention — who had contributed to his election campaign.

That raised the spectre of “pay to play”, i.e. private law firms put money into law officers’ election campaigns and then got public legal work. The practice raises suspicion of bribery and induces some tut-tutting in that beacon of ethical rectitude, the American Bar Association. 

Other state AGs joined the Moore-Scruggs’ action, and most hired campaign donors, but Texas Attorney General Dan Morales (Dem) may have taken pay to play to its logical conclusion. Catherine Crier, a former Texas judge, noted in The Case Against Lawyers (Broadway, 2002) that it was alleged in 1998 that Morales had “solicited $1 million from each of several lawyers he considered hiring”.

Faced with suits from 39 states, the tobacco firms accepted a Master Settlement Agreement (MSA) in November 1998. They agreed to pay the states $US246 billion over several decades.

Lawyers are supposed to be professionally barred “from charging or collecting a clearly excessive fee”, and the private law firms involved had decently reduced their usual percentage of the payout from upwards of 40 percent to 25 percent and even lower.

Nonetheless, five Texas firms expected to get US$3.3 billion, and Walter Olson said Scruggs’s firm “was expected to pocket more than $US1 billion”, i.e. more than $A1,400,000,000.

It is difficult to grasp how much money that is, but ordinary people might suspect it is just a bit excessive.

Sadly, in 2003 Dan Morales was gaoled for four years for fraud; he had tried to gouge $US520 million from the MSA for a lawyer, Marc Murr, who had done little or no work on the tobacco action.

Even more sadly, our brave Prime Minister apparently disagrees with George Jnr on the need for tort reform. We can only hope this will not destroy the US alliance.

From Justinian, July 14, 2004

Evan Whitton

“Dubya” is on the right team when it comes to tort reform …