The Legal Underground's Tort Reform Glossary

In this lawyer’s opinion, the debate over tort reform has bogged down as the result of too much legalese. As an aid to non-lawyers everywhere, I’ve prepared a short glossary to help keep track of the terms used most often in the tort reform debate.

Advocates of tort reform may not agree with some of my definitions. This illustrates an important feature of the tort reform debate: It’s impossible to please everybody.

1. Trial Lawyer. A trial lawyer is any lawyer who appears in court, no matter whether he’s appearing for the plaintiff or the defense. In the tort reform debate, however, the term is often used pejoratively to refer only to those lawyers who file lawsuits, that is, “plaintiffs’ lawyers.”

2. Plaintiffs’ Lawyers. Plaintiffs’ lawyers are a subset of trial lawyers who always appear for the person who has brought the lawsuit. The use of the word “person” is intentional, since lawyers representing corporations that bring lawsuits, though technically lawyers for the plaintiff, are not plaintiffs’ lawyers. They may, however, be “class action lawyers.”

3. Class Action Lawyers. These are lawyers who are trained to work on class actions. The term can refer to the lawyer appearing either for the plaintiff or the defense. In the tort reform debate, however, some exclude from the definition any lawyer who appears for the defendant in a class action. This exclusion is made most often by “tort reformers.”

4. Tort Reformers. These are people who are often employed by industry groups to defend their clients’ reputations when under attack by trial lawyers, plaintiffs’ lawyers, or class action lawyers. Most often, tort reformers are neither lawyers nor “attorneys,” though they are often Republicans.

5. Attorney. An attorney is any lawyer who wishes to sound more important than he actually is. Though attorneys often do not like to admit it, all attorneys are lawyers, and all lawyers are attorneys. This is true even if the person in question is a “defense attorney.”

6. Defense Attorney. This is a lawyer calling himself an attorney who represents the corporations being sued by trial lawyers, plaintiffs’ lawyers, or class action lawyers. Though the defense attorney often pretends to be a tort reformer, he secretly recognizes that without lawsuits, he’d have nothing to do. It is every defense attorney’s fervent wish to receive an assignment to defend a “mass tort.”

7. Mass Tort. A mass tort occurs when a number of injury claims (for example, claims for harm caused by a prescription drug) are filed one by one, individually, which tends to create a huge amount of work for all types of lawyers, including defense lawyers. This is not a problem for the defense lawyer, of course, unless he is already busy working on a “class action.”

8. Class Action. A class action is the type of lawsuit a little guy uses to try to get the attention of a giant corporation after being harmed or cheated. According to tort reformers, class actions are a legalized form of extortion carried out by trial lawyers, plaintiffs’ lawyers, and class action lawyers. Class actions are often cited as Exhibit A in the movement for “tort reform.”

9. Tort Reform. Tort reform is any new law proposed by tort reformers to change the civil justice system, even if the change improves the civil justice system only for large corporations. Though some charge that tort reformers improperly use the word “reform,” tort reformers don’t care. They are also perfectly content to gloss over this point in their “tort reform radio spots.”

10. Tort Reform Radio Spot. This is an ad, paid for by tort reformers, which espouses the view that most of life’s problems are caused by trial lawyers, plaintiffs’ lawyers, and class action lawyers. Persons from these three groups find these radio spots more offensive than Howard Stern, and often turn them off immediately.

This brief glossary of tort reform terms should be used frequently and often during the rest of the political season. Following the presidential election, it can be placed in a drawer. But it shouldn’t be misplaced, since it may become necessary again in 2008, perhaps sooner.

[Like this post? It's one of many included in my book How to Feed a Lawyer (And Other Irreverent Oberservations from the Legal Underground). Details here.]

Comments

[David Giacalone]

Hey, don't forget that virtually every person on the planet is or has been an "attorney" at some time -- including when your mother sent you to the store to buy a bottle of milk.

As Wikipedia explains: "Colloquially, in the United States, lawyers are called attorneys. In fact, almost anyone can be an attorney; (see for example attorney-in-fact) strictly speaking, an attorney is similar to an agent, a person who has been formally empowered by someone else (a "principal") to act on behalf of the principal. Lawyers are "attorneys at law," authorised to plead cases on behalf of their clients."

So, if lawyers want to sound both more important and smart, they should say "attorney at law," or "attorney-at-law," if hyphen-empowered.

[Evan]

David: Thanks for helping lawyers sound more important than they actually are. Previously, I wrote about the attorney/lawyer distinction in this post. I also note Garner agrees that "lawyer" is the proper word, and begins his entry on "attorney" like this: "Lawyers, like those in other walks of life, have long sought to improve their descriptive titles." In Garner's entry on "lawyers, derogatory names for," he speaks of the "unfortunate tendency for lawyers to call themselves attorneys instead of lawyers."

Both references are to Garner's "A Dictionary of Modern Legal Usage," which I recently purchased so as to stay one step ahead of my copyeditors. The entry on "lawyers, derogatory names for" will someday be the topic of a separate post, even though Garner's list doesn't include the term "scum-sucking lawyer," which this guy recently used to describe me. Do you think he was joking?

[Ted]

The pejorative connotation of "Trial Lawyer" comes, I believe, from the decision of the lobbying arm of the plaintiffs' bar to call themselves the American Trial Lawyers Association.

I'm hard pressed to think of a single proposed reform that "improves the civil justice system only for large corporations." But even if it were so, I wonder why such a critique would be legitimate. Do you also take the converse position that any change to the civil justice system that would make life more difficult for large corporations would be an improvement?

[Evan]

Ted: You might be right about ATLA, although it was established in 1946. It was then called the "National Association of Claimants' Compensation Attorneys." The name was changed to the Association of Trial Lawyers of America (you almost had it right) in 1972. (Source: 2003-04 ATLA Membership Directory.) Since ATLA is composed primarily of plaintiffs' lawyers, the use of the term "trial lawyers" to mean "plaintiffs' lawyers" may definitely be attributable in part to ATLA. However, not everyone uses the term "trial lawyers" pejoratively. That, I believe, was an idea cooked up by tort reformers.

As for your second paragraph, I added the word "large" at the last minute. Perhaps that was a mistake. My point is that the "reforms" proposed by those advocating "tort reform" often make things easier for corporations at the expense of individuals. Even when such an intent is masked in a particular proposal, the net effect of all the talk about "tort reform" is to make juries more stingy about awarding fair compensation to individuals at trial. I don't think the regular guy on the street realizes that when he parrots the editorial writers and complains about "greedy trial lawyers," it's going to come back to haunt him when his mother breaks her leg in an auto accident and tries to recover fair compensation at trial.

So far this year, the U.S. Congress has been unable to make much headway with tort "reform," which means to me that a majority in Congress must be suspicious about it. Meanwhile, you are doing a good job of documenting the opposing view at overlawyered.com. (Thanks much for the link, by the way.)

[Ted]

Actually, it was a 59-39 cloture vote that stalled the previous version of the Class Action Fairness Act, so the majority of Congress supports tort reform.

the "reforms" proposed by those advocating "tort reform" often make things easier for corporations at the expense of individuals.

Corporations are financial arrangements amongst individuals, so you present a false dichotomy. But you've dodged my question: do you also take the converse position that any change to the civil justice system that would make life more difficult for corporations would be an improvement?

[David Giacalone]

Hey, this is supposed to be a fun site, guys! I shall note merely that, to most Americans and other humans, the very word "lawyer" is a pejorative. See, e.g., scandal-ridden cops more popular than lawyers.

I just checked my framed NYS certificate and it says I'm officially an "Attorney and Counselor at Law." You might be a "lawyer" when you have a law degree, but you're not an "attorney at law" until you have been admitted to at least one state bar. I use both "attorney" and "lawyer" in my writing, because I dislike using the same noun over and over, and at times aliteration needs call for one or the other.

One of these days, Evan, you might check out when Americans shed the British terminology and why.

Dr. Schaeffer, where you out of grade school when law degrees got inflated into being Juris Doctor degrees?

[Evan]

Ted: Under intense cross-examination, I assert as follows: I don't support changes to the civil justice system made only in order to "make life more difficult for corporations." If any particular proposed change is meant only to make life more difficult for corporations, I disagree with the proposal. If asked to vote on it, I would vote against it. I would not, however, agree to join a march or any other large gathering (unless the organizers are serving beer and hot dogs).

To continue, I believe that proposals made only to make life more difficult for corporations would not improve the civil justice system. I think any such proposal, to the extent it exists, is a massive waste of time.

This time, I think, I have failed to dodge your question. But let me know if I haven't.

David: I don't recall exactly when I graduated from grade school. Depending on your definition of grade school, it must have been in the late 1970s. However, I didn't receive my law degree in grade school, but in law school.

[Tiger]

I tell my clients that my job is to do what they would choose to do for themselves if they had my knowledge and experience, within certain ethical guidelines which dictate that I must act according to a certain code of conduct, hench I cannot kill the opposition's attorney, even if paid handsomely to do so. To my way of thinking, trials are the ultimate effort you can effect for a client. Of course, although I do some civil work, most of my trial work is in the criminal arena where seldom is heard a truthful word.

[Kevin]

I'm pretty sure I read somewhere that advertising execs, claims analysts and politicians rank lower than lawyers and scandal ridden cops on the pecking order.

Clearly, Americans on the whole loathe anyone in a position of power over them. I guess you could say that as a society, we suffer from Oppositional Defiant Disorder.

[George Wallace]

As a Californian, I am feeling left out of this discussion. We no longer have any "trial lawyers" or "plaintiff's lawyers" in this state. Several years back, the leading members of those groups decided that they should henceforth be known as "Consumer Attorneys".

What, exactly, they consume is shrouded in mystery.

[Kevin]

Cash.

[Stephen M]

Err, an attorney is an employed lawyer. One is always an attorney for someone else.

[Evan]

Stephen: "Lawyer" or "attorney"? I did a post about it once, which you can find here. Meanwhile, I stand by my definition of attorney: "any lawyer who wishes to sound more important than he actually is."

[Mike]

You might be a "lawyer" when you have a law degree, but you're not an "attorney at law" until you have been admitted to at least one state bar.

While this distinction is technically correct, I suspect that a state bar would come down hard on someone who was not admitted to the bar for calling himself a "lawyer."

Do you agree?