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Book Review 
Summer 2003
The Rule of
Lawyers
By Walter K. Olson;
New York, St. Martin's Press, pp.358, 2003.
This up-to-date indictment of the
huge influence of the trial lawyers in the United States occasionally
reads like a Republican screed but does cover most of the recent
product liability and class action lawsuits that have garnered so much
public attention: the tobacco wars and multi-state settlement,
asbestos litigation, breast implants, pharmaceutical, automobile and
gun damages and a variety of other widespread legal actions. Not
surprisingly, Mr. Olson's chief complaints are the big money and the
big political influence derived from all the litigation. His major
thesis is that the plaintiffs' bar has taken over the function of the
Congress and the various state legislatures without any constitutional
mandate. Thus the subtitle: "How the New Litigation Elite Threatens
America's Rule of Law."
The biggest targets are, of course,
the often colorful, multi-millionaire trial
lawyers-turned-entrepreneurs and the state attorneys general who have
collaborated with them in obtaining more political clout for
themselves and more money for their states. Local judges, especially
in those plaintiff-friendly southern districts the author calls "the
Jackpot Belt" and reluctant legislators also come in for their share
of criticism. About the only "class" that comes in for a certain
praise is the federal bench, who the author cites as exercising the
only major restraint on the trial lawyers takeover of the law-making
process that they might call "doing well by doing good."
The book is peopled with a
fascinating cast of characters. Dickie Scruggs and Michael Moore, the architects of
the tobacco "extortion" are spotlighted as are the leading
legal lights in the asbestos and diet drug class actions. A whole
chapter is devoted to the phony presentations of automobile defects by
Dateline and other TV magazine shows. Not unexpectedly, Ralph Nader and his minions come in for
special critique.
Mr. Olson contrasts the legal process
in the United States with that of modern, democratic foreign
countries. The U.S. does not come off well in his purview. Mostly, the
absence of the "loser pays" concept so well established abroad comes
in for much criticism. This allows multiple lawsuits to get started
without much downside risk. The new-found cooperation among trial
attorneys and especially the pooling of personnel and financial
resources in bringing these industry-wide class actions comes in for
special attention. This allows widespread publicity and trolling for
clients.
Mr. Olson is particularly incensed at
the collaboration of private attorneys with government in which the
attorneys fees are basically unrestricted. Their fees are often not a
percentage of the total settlement. The consortium of lawyers often
charge the defendant directly in a separate settlement that is not
open to public scrutiny. There is, according to the author, often
little correlation between the amount of work and the fees obtained,
resulting in hourly compensation in the thousands of dollars.
The pendulum has swung too far in the
direction of the self-appointed guardians of the people: class warfare
indeed. The imbalance probably needs some restoration. Mr. Olson
compares some of these major litigators to men on horseback with near
dictatorial influence over whole industries. That may be an overreach
but their "get things done" philosophy has trumped the sluggish and
often downright dawdling legislative process, often frustrating but
necessary in a democratic country with multiple special interests and
a heterogeneous population.
While this book won't rank with The Jungle or Unsafe at Any
Speed in its influence of the inequities between the corporate
world and the working class, some of its major points are well worth
considering in realigning the delicate balance and reshaping the legal
process. Tort reform, while the watchword of the day with a friendly
national administration and promoted by manufacturers and insurance
companies and physicians, comes slowly and end-runs around the rules
can always be made by enterprising attorneys with new legal theories
of harm. Further, large political contributions to key Congressmen and
state legislators is a perpetual tool that keeps reform in check and
sustains the business-as-usual attitude. The fact that many
legislative types come from the ranks of trial lawyers and retain
their "friendly" affiliations with their former firms and colleagues
adds to the difficulty.
Mr. Olson does not have a practical
cure for all the abuses he cites, however he does make some valuable
suggestions for reform. A worthwhile read although, to borrow from Fox News
Network's
famous phrase, somewhat unfair and unbalanced.
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