Memo to ATLA: We're Losing the War

Why has the Association of Trial Lawyers of America (ATLA) been so outmaneuvered by the tort reformers? It's true that ATLA has fought lots of behind-the-scenes battles in Congress to slow or stop tort-reform measures that would take away the rights of consumers and victims. As lobbying and fund-raising organization, ATLA's pretty good. But that's only half the battle. While it's been lobbying hard behind the scenes, ATLA has completely failed to get its message out to ordinary people.

Meanwhile, the tort-reform lobby has spent millions at the grassroots levels--buying TV commercials and print ads, setting up booths at county fairs, and starting newspapers and weblogs--in order to spread its message of "greedy lawyers" and "frivolous lawsuits." The aim of the tort-reform lobby is not only to pave the way for legislation, but to poison potential jurors with its pro-business mindset. Speaking as a lawyer who's been involved in jury selection recently, these efforts of the tort-reform lobby have been a smashing success.

It means that even if tort-reform legislation isn't passed, it hardly matters. The tort-reform lobby has learned how to speak to jurors directly. Does ATLA understand? An article today at Law.com contains this quote:

"Unfortunately, we've spent the last 10 years with our finger in the dike trying to hold back the tide," says Fred Baron, a former ATLA president and head of Dallas-based plaintiffs firm Baron & Budd. "We've been playing more of an insider game and not spending the time and energy and money on public opinion."

Sounds great, but it's too little too late. ATLA has been outmaneuvered on the field, failing even to show up on one of the key fronts. As an ATLA member myself, I'm more than a little discouraged.

UPDATE 5:20 p.m. CST: Here's a fascinating article from the Washington Post describing what ATLA is up against: "A Quiet Revolution in Business Lobbying; Chamber of Commerce Helps Bush Agenda," by Jeffrey H. Birnbaum (free registration may be required, or try bugmenot.com).

Comments

[Milo]

I'm MORE than a little discouraged. As a fellow Hell-holian myself, I feel your pain.

I am disgusted with the way ATLA defended its Southern Illinois members during the last smear campaign. Then, as a way to thank ATLA for its job well done, we are solicited for a special dues assessment of $125-$150 each (I can't remember the exact figure as I shredded my original invoice and also recently shredded the second invoice that reminded me I didn't pay the first invoice) to fight the battle over tort reform. TOO LITTLE, TOO LATE.

All of this happened with an ILLINOIS attorney at the helm of the ATLA ship. For me, that ship is dashed on the rocks and taking on water - FAST. I certainly will NOT pay the special assessmant, nor will I continue my membership in this organization. It is sad, but a reality I have come to face.

Milo

[Mike]

Evan: Why don't you and JR start an ATLA blog? The ACS blog is rather nice. You both have good blogs to prove that it's feasible. The tort reformers have several blogs, so ATLA is way behind. But people like Kos and TalkLeft would probably send traffic to the ATLA Blog.

If I were JR (wink, wink), this is one way I could establish myself as a player before even graduating law school. Word on the street is that when a law student shows this type of initiative, he or she gets a lot of job interviews - except it's the student interviewing the employer. (!) Just sayin...

[Evan]

Milo: Thanks for your comment. Although I didn't mention the "judicial hellhole" thing in the post, it was definitely on my mind. We're coming from the same place, literally and figuratively.

Mike: Are you saying that you've been interviewing employers?

[Mike]

Mike: Are you saying that you've been interviewing employers?

Not lately. But in the past, yes. My past job offers did not follow the usual send-resume-and-sweat-through-job-interviews. Usually I'd be at a CLE (and I'd be the only law student there, even though I tell law students they should attend) and a nice informal discussion ensues. Next thing you know, I'm being told how great such and such place is, and how I would just love living and working there. One fellow (at an ATLA seminar, actually) tried setting me up with his daughter. Another guy hosted me in his house (mansion?) and offered me a sweat deal after we hit it off over drinks at a CLE.

No one has contacted me about a job offer through my blog though, and that makes me question some assumptions.

[Yeoman]

Coming from the other side of the bar, that is the defense lawyers in civil litigation, I think perhaps you may be judging the ATLA too harshly. I think they are fairly effective, at least they appear to be.

Tort reform failed in my state, in spite of lawyers being unpopular, the ATLA had a large share in that. Yes, it has succeeded in a lot of other states, but can the ATLA be blamed for that?

Look at it this way, you've mentioned that the ATLA has failed to get its message out to ordinary people, while the opposition has. But what message is that, really? Lawyers have some vague claim to defending rights, helping the injured, but the opposition usually is somebody like your family doctor. That's hard to go up against.

And another aspect of it is that juries have become really savvy on contingency fees. They know what the Plaintiff's bar gets, and they don't like it. They don't realize that you don't get anything for a lot of your cases. Instead, when you talk of rights, they figure you're talking of the 33% of a recovery you stand to get.

As a slight beef, one thing the ATLA could to better is not to be such a bunch of jerks to the Defense bar. Truth be known, most Defense lawyer in the civil arena sympathize with opposition to tort reform, and are your natural allies. We don't get the 1/3d of the recovery, and we often work just as hard as the very best of the Plaintiff's bar for a fraction of the income they carry home. I don't know that ATLA hostility to the Defense bar exist at the national level, but at the local level it seems evident. When I attend local Plaintiff's bar CLEs, for example, I hear how bad we all are. After hearing this for years, and attending a lot of Plainitff's bar events, I was not really all that keen on helping oppose tort reform when it rolled around recently. And whem my business clients ask how they should vote, I didn't feel too inclined to suggest what my thoughts were.

[Evan]

Yeoman: Thanks for your input. A few responses:

1. That's too bad that your local trial-lawyer group is unkind to the defense bar. I don't see that around here--at least face to face, everyone gets along fine, at bar events and otherwise. Behind closed doors, I suppose each side must rip the other from time to time--sometimes that can be fun to do. But I would be surprised to see the sort of public behavior you describe. In my experience, most lawyers who litigate naturally bond with others who do the same regardless of whom they represent.

2. I've never thought that defense lawyers as a group had anything at all to do with tort reform. Why not? Some would say it's because defense lawyers want plaintiffs' lawyers to file lawsuits so they can make money. Not true. Rather, I think it's that defense lawyers can see through the exaggerations of the tort-reform movement and don't like them.

3. You said of defense lawyers, "we often work just as hard as the very best of the Plaintiff's bar for a fraction of the income they carry home." Point taken, but don't forget that it's only a handful of plaintiffs' lawyers who make lots of money. It's not true for the majority.

[Yeoman]

"1. That's too bad that your local trial-lawyer group is unkind to the defense bar. I don't see that around here--at least face to face, everyone gets along fine, at bar events and otherwise. Behind closed doors, I suppose each side must rip the other from time to time--sometimes that can be fun to do. But I would be surprised to see the sort of public behavior you describe. In my experience, most lawyers who litigate naturally bond with others who do the same regardless of whom they represent."

The way you describe you situation is how it should be everywhere, but it isn't here. The Plaintiff's organization here treats the Defense bar as if we're escaped members of the KGB. It's ridiculous.

Individual lawyers are usually better, however, and that doesn't tend to be the case outside the organization setting.

"Rather, I think it's that defense lawyers can see through the exaggerations of the tort-reform movement and don't like them."

I think that's correct.

"3. You said of defense lawyers, "we often work just as hard as the very best of the Plaintiff's bar for a fraction of the income they carry home." Point taken, but don't forget that it's only a handful of plaintiffs' lawyers who make lots of money. It's not true for the majority."

Quite true.

[Yeoman]

Have you folks seen this one about NJ making lawyers pay part of doctors malpractice insurnace fees?

http://www.abanet.org/journal/ereport/f11medmal.html

[JAK]

Dear tort boys,

The reason you are losing your battle is that you have incensed too many for too long. I am a 6th year surgical resident starting practice this summer. Over my 6 years of training, the talk about liability and who is responsible has reached a fevered pitch, with a crescendo being heard now. We have no doubt who is responsible and we are donating in record amounts to politicians who support us.

We are also enlisting the help of our patients to stop the lawyers. Consider this: the average doctor sees 90 patients/week for avg of 45-46 weeks. There are 1 million doctors in the US. Our office-based postings of candidate selection, issue importance, and who is to blame has increased exponentially in recent years.

While lawyers may have some point about insurance company excess, it falls on deaf ears. Big-law's tobacco windfall (and other disgusting excess we've all read in recent years) may have wonderful financial consequences for those few lawyers lucky enough (and unethical enough) to take the millions, but the rest of you will pay for many years as this kind of arrangement is so clearly nauseating to the common man. These excesses will be your undoing and, as always is the case, the pendulum will swing aggressively to the contralateral side. Buck up, boys, you're in for a rough ride.

[Evan]

JAK: You write, "[T]he rest of you will pay for many years as this kind of arrangement is so clearly nauseating to the common man."

I'm a little skeptical that you speak for the common man. It's more likely that you speak for 6th year surgical residents. But I'm skeptical about that too.

Here's a post for you, after you've had some sleep: Click here.

[Marie]

The full page ads placed by the medical profession in our local newspaper are not very compelling or appealing to me. The full page ads placed by the trial lawyers are, however, very compelling and often tell a heart wrenching story of a patient who was harmed at the hand of their trusted physician. Unfortunately, those ads don't seem to appear as often as the others. I never understood why. I just thought they would try harder.

Incensed? Personally, I think people are more incensed when they hear that someone was injured by their doctor.

[1L]

Consider this: the average doctor sees 90 patients/week for avg of 45-46 weeks. There are 1 million doctors in the US. Our office-based postings of candidate selection, issue importance, and who is to blame has increased exponentially in recent years.

Wow! -- Doctors sure accomplish a lot during the 90-seconds they spend with each patient.