Topic: Professions & Institutions

The Trial Lawyers Hide
(7/31/2006)

Beyond question, trial lawyers have not earned the degree of intense criticism and ridicule they receive from the media, popular culture and political figures. Throughout our nation’s history, the profession has played a central role in protecting ordinary Americans from abuses of power by the government, the police, business and influential individuals. Trial lawyers have prevented the unjust imprisonment of millions of citizens accused of crimes they did not commit. They have forced negligent companies and careless doctors to pay for the devastation their misconduct inflicted on innocent consumers. They have battled age, race and sexual discrimination, and inspired essential changes to U.S. laws and regulation. Abraham Lincoln was a trial lawyer; so was Clarence Darrow. They are, in short, a uniquely American breed of lawyer that is indispensable to keeping our capitalistic democracy in good working order.

Why, then, are trial lawyers so often the target of public abuse? The profession has allowed itself to be defined by its worst abuses and most irresponsible members. It refuses to confront and discipline its many members who demand unconscionably high percentages of court awards for their contingent fees, devise dubious class action lawsuits more for their own profit than to address significant wrongs, bring spurious complaints to court, use unethical litigation tactics or engage in offensive advertising practices. The trial lawyer’s national association and its state affiliates have fought reasonable legislative reforms with the same vigor with which they have opposed oppressive ones, using their financial influence (some of it obtained through the abuses listed above) to become one of the most powerful interest groups in the country. Their enemies, many of whom have been justly punished for wrongful conduct through the most admirable and effective efforts of the trial bar, have been able to use the well-publicized excesses of a small minority of unethical lawyers to erode the image of the entire profession.

The Association of Trail Lawyers of America (ATLA) decided that the public perception of their members was distorted and unfair. They concluded that they had to take action, and attack the image that had been fashioned for them out of the worst conduct of their most disreputable and often most visible members. So at their 2006 annual meeting, they decided to address the issue by changing the name of their organization, erasing any mention of the fact that their membership consists of trial lawyers or even lawyers. The new name it adopted is the American Association for Justice, a catchy moniker that would be equally fitting for an immigrants’ rights group, a fair wages organization, or a comic book team of super-heroes. Rather than address their profession’s image problem in a straightforward and direct way, educating the public while showing that it was serious about fixing the very real problems within the trial bar, the trial lawyers decided to rely on deceit and misrepresentation.

This is ironic, because the lawyer’s ethics rules specifically forbid “misrepresentation, dishonesty, fraud or deceit.” One would think that an association of lawyers would want to, indeed, would have to, respect the ethical requirements its members’ profession. Sure, using cover-phrases, half-truths and euphemisms is epidemic today, from “pro-life” and “pro-choice” to “intelligent design” and “the Patriot Act.” That doesn’t make the practice of deceiving the public by hiding meanings and motives any less dishonest, and for an entire profession to actually remove its name and purpose from its trade organization’s name is pretty low, just a few notches above the practice of totalitarian regimes calling their countries “republics.”

Florida super-lawyer Mike Eidson, the new president of the association, claims that the name change “is a good change that reflects what we do and not who we are.” He didn’t become one of the richest lawyers in American making lame arguments like that one. Trade associations are assembled according to profession, not motivations. Lots of other professionals seek “justice”: victim advocates, ministers, priests, rabbis, police, investigative journalists, social reformers, scholars, ethicists…the list is endless. But only trial lawyers are permitted to be dues-paying, regular voting members of ATL…oops!… “The Association for Justice.” And while it is true that most trial lawyers, like most Americans, are interested in justice, trial lawyers also seek clients, fees, wealth, fame and power, sometimes to the detriment of justice. Trial lawyers represent the best interests of their clients, whoever they may be and regardless of how compelling the competing claims of their adversaries are. Describing the advocacy of trial lawyers on behalf of their clients’ subjective interests as “justice” is to distort the lawyer’s role in the legal system, and every trial lawyer has had that drummed into his or her brain since law school. Justice is the job of judges. “The Association for Justice” describes what trial lawyers “do” no more accurately or thoroughly than “The National Golf Association” would describe what doctors “do.”

It is ironic, though, to see the same lawyers who have been instrumental in forcing drug companies, food packagers and manufacturers to use accurate and informative labels on their products choosing to intentionally mislabel their own. And it is fascinating to discover that a professional association made up of smart, accomplished individuals can think of no more effective way to counter criticism than to employ exactly the kind of slippery, misleading and intellectually dishonest tactic that has given trial lawyers the unsavory reputation they are trying to combat.

Ironic, fascinating, and sad.

[Note: The author is an attorney, counts many trial attorneys among his closest friends, is a past member of ATLA and served as its Director of Member Services from 1987 to 1994.]

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