Thursday, January 06, 2005

January 5, 2005

Litigation "Reform"

Democrats will have a chance in coming weeks to do well by doing good. President Bush is just about handing it to them if -- IF – they can shake loose of their old ways and show they can still think for themselves.

The President has been beating the “frivolous lawsuit” drums for years now. And he is now about to play that card. It’s Karl Rove’s latest Trojan Horse/wedge issue. The ground has been carefully prepared during the last two campaigns with tales of “good Docs” being forced to scale back their services for fear of being sued by patients.

(Poor Karl. He has to depend on a George to deliver such messages. So Karl must have poured a double scotch when he heard Bush flub his lines when he claimed that frivolous medical lawsuits are “forcing OBGYN docs from sharing their love with women.”)

Nevertheless the propaganda blitz has had its desired affect. When average Americans hear the term “frivolous lawsuit,” they immediate recall the woman who won a huge award against McDonald’s because her hot coffee was hot, or the burglar who sues the family he burgled because they hit him with a baseball bat when they caught him prowling in the house.

What this administration means when it uses the term is something else entirely. To figure out what they mean all you need to do is look at the list of corporations and trade groups supporting the President’s vision of litigation reform.

The last time Congress “reformed” the nation’s civil litigation laws was when they passed the “Private Securities Litigation Reform Act of 1995.” Those changes made it harder for small shareholders to band together to file class action suits against those engaged in stock fraud. Those changes directly contributed to first the dot-com bubble and crash and then the wave of corporate accounting scandals.. Enron, WorldCom, Global Crossing.. et al. The PSLRA “reforms” had made it nearly impossible for would be class action litigants to force the kind of legal discovery needed to unmask the frauds that were rampant within those and many other companies. And, it still does.

Now the GOP, fresh from an corporate-financed election victory sweep is about to thank their contributors by giving them more of the same kind of litigation “reform.” This time they want it make it harder and – even impossible -- for consumers to sue companies that knowingly injure or even kill their customers with their services or products. To see why business wants these changes you need look no further than the recent spat of cases of highly profitable prescription drugs that were kept on the market months or even years after their pharmaceutical company producers learned they were killing people.

So, what Democrats need to do is come back with a reasonable and hard to argue against counter-offer to the President’s phony reforms. John Edwards started that process two years ago when he proposed a national “three strikes” law for lawyers. If a lawyer or law firm files three lawsuits that are proved to have been frivolous they would lose the right to ever file a civil damages action again.

But taking such a stand would be a big step for Dems who have become increasingly beholding (financially) to powerful and well-heeled trial lawyers. But wait .. what would pissing a few trail off really mean? Think about it. First, what has that love affair done for Democrats? Nothing. People don’t like politicians and don’t like lawyers. Put the two together and voter dislike becomes greater than the sum of the two parts.

But what about the money? Reframe the question: “What has that money bought Dems? Even as trial lawyers poured more money into DNC coffers, Democrats have lost, lost, lost.

Finally Democrats need to acknowledge that there really are such things as frivolous lawsuits. And they need to prove they understand that such suits are both a drag on the economy and form of legal terrorism. While the problem is no where as bad as President likes to portray, it is real and like physical terrorism, it only takes one or two parasitical law suits near you or your business to make everyone else nervous and defensive.

(As a reporter I lived in constant terror of being sued, so I know of what I speak. Did it affect my stories? I like to think not. But there were times I left tasty tidbits out of a story, some of which would have helped readers understand the big picture better. I did so consciously because I figured it was just not worth the hassles it would cause me the next day. So, self-censorship is one way lawsuit terrorism takes its silent toll.)

In Great Britain if someone brings a civil action and loses their case, they pay the court costs. Americas trial lawyers warn that instituting such a rule here would mean no one would sue a big company again and they would run wild. Well, no one who has spent any time in England can say that that country is any less clean and safe as any place in the US. What such a rule does is to require would-be litigants ante into the pot before the cards are dealt. Here we have no such rule. What we have here is what economists call a “moral hazard,” a “heads I win, tails you lose,” situation for lawyers and litigants. Instituting a loser pays rule here would go a long way to getting the seedy lawyers and their equally seedy clients out of the courts and out of our hair.

So listen up Dems. Don’t let Rove’s Rangers roll the Litigation Reform Trojan to victory -- again. Grab this issue by the neck and make it your own. By embracing commonsense litigation reforms, (like those above and others circulating,) you will short circuit the long-planned corporate-sponsored gutting of consumer protections the GOP is talking about.

Or, don’t. Instead go to lunch with your favorite triall lawyer. He’s buying – at least while you remain in office.

DeLaying Justice
Tom DeLay. So far this former bug killer from Sugarland, Texas has been Congress’ very own Artful Dodger. But his winning streak may be coming to an end. Like the scum jettisoned by the system before him -- Jim Wright and Newt Gingrich -- Tom Delay’s grip on power is slipping on its own slime.

Earlier this week House Republicans tried to build a dike around their embattled Majority Leader. But that attempt to change House rules failed when even Republican voters could not gag it down. The rule change would have let DeLay keep his leadership post if he were indicted for a crime. Funny thing about that, seems he may just be. Texas prosecutors are slowly unraveling DeLay’s vast fundraising scams back home. (See David Donnelly’s story HERE )

An indication of how far the worm has turned in recent months, even DeLay’s fierce reputation for retribution can no longer keep his co-conspirators in quiet. Sources say that a least two companies have cut deals and turned state's witness against DeLay. One of them is national retailer, Sears.
The other company is Diversified Collection Services. Diversified made a $50,000 contribution to a DeLay controlled PAC as part of scheme prosecutors say laundered illegal corporate contributions for the Majority Leader. Diversified and Sears are two of eight corporations accused of giving a total of $190,000 to Texans for a Republican Majority during the 2002 legislative campaign. The use of corporate money for political purposes is illegal in Texas.

Three close DeLay associates have also been indicted in the ongoing investigation and are reportedly ratting on their powerful friend.

Texas grand juries have spent two years investigating contributions in the 2002 legislative campaigns. Thanks to a DeLay-engineered gerrymandering of Texas districts, the election resulted in the first Republican majority in the Texas Legislature in modern times.

But the things DeLay had to do to win that majority may cost him his leadership -- and his freedom.

We can hope.

No comments: