Today, we face an unprecedented effort to preempt the civil justice system in the states. Each week brings a new bill. These proposals are not the products of empirical analysis and are not debated in any committee. In fact, they are quite the opposite—bxsed on anecdote, fed by half-truths and outright lies, and nurtured by a political agenda to destroy citizens’ rights.

Consider a recent bill that sought to insulate food manufacturers from "obesity" lawsuits. The Washington Post correctly observed that under current state law these cases are unlikely to succeed. Why, then, the rush to preemption?

Anticonsumer lawmakers have also proposed preemptive legislation to protect HMOs, the pharmaceutical industry, and doctors who commit medical malpractice. This effort, in different forms, has been forced on the Senate three times this year.

The list does not end there:

• As this issue of TRIAL goes to press, legislation that would create a federal asbestos trust fund, preempting asbestos liability suits in all 50 states, is scheduled to be debated.

• A recent bill would have preempted lawsuits seeking to hold gun manufacturers liable for injuries and deaths linked to their products. As amendments to extend the assault weapons ban and close the gun-show loophole were added to the bill, the National Rifle Association called for its defeat. Whatever your opinion on gun liability, it’s a matter that should be handled at the state level.

• The "Class Action Fairness" bill would federalize not only virtually every class action, but also individual tort cases coordinated in so-called mass actions. This legislation—which both the federal and state judiciaries oppose—would transfer thousands of cases from about 30,000 state court judges to about 600 federal judges, without any significant additional funding for the federal bench. The federal courts would have to struggle mightily—and unnecessarily—to handle the increased caseload.

As ATLA and its allies fight these preemption battles, contingent fees are also under fire. In a late-night maneuver, the Senate unsuccessfully attempted to impose a special tax on certain contingent fees. Meanwhile, a tort "reform" group misleadingly named Common Good filed petitions in 12 states to change the Rules of Professional Conduct regarding attorney fees. The changes would cap fees at 10 percent of the first $100,000 and 5 percent of any additional damages award where the lawyer did not provide precomplaint discovery to the defendant or where an early settlement offer was eventually accepted. Corporate America’s right to pay hourly fees to corporate counsel would, of course, remain untouched.

The Center for Constitutional Litigation—led by its president, Bob Peck—has monitored the situation and intervened on behalf of the state trial lawyer association in Utah, the only state where the petition appeared likely to receive serious consideratio). The result was a unanimous rejection.

Sticks and stones

Powerful business interests see the potential for tremendous financial gain in the erosion of citizens’ rights—and they are using outrageous tactics, including name-calling, to get it. Witness recent comments by Maurice Greenberg—chairman of a major insurer, American International Group, Inc.—labeling trial lawyers "terrorists." ATLA responded by reminding him that, through Trial Lawyers Care, trial lawyers had represented, pro bono, more than 1,700 families who lost loved ones at the hands of the 9/11 terrorists. We demanded an apology, but as expected, none was forthcoming.

More recently, U.S. Treasury Secretary John Snow likened trial lawyers to corporate criminals. Clearly, this type of language is designed to inflame passion, not to invite reasoned debate.

What does reason show us? A recent GAO report found that virtually every claim made by the American Medical Association about the alleged malpractice "crisis" was without factual basis. A report by a medical malpractice insurance carrier acknowledged that its rate increases were the result of overly aggressive marketing tactics and the economic downturn. And a study by two law school professors found that class action recoveries and fees have been stable for the past 10 years, contrary to popular myth and corporate propaganda.

The prospect of tort "reform" is a clear and present danger. The evolution of state common law will be severely disrupted, and statutory interpretation by federal courts will take its place.

Every lawyer should be outraged at this blatant attempt to destroy our civil justice system. It is an attack on our judges, our jury system, and ultimately the American people. But outrage without action is not enough.

ATLA, with its dedicated and hardworking staff, is doing everything it can to win this fight. We can do more with your help. To find out how you can get involved, visit the Activist Center at www.atla.org, or contact Kristin Keckeisen at (800) 424-2725, ext. 543.

David S. Casey Jr.