What trial lawyers want 

Over on the Point of Law blog, the Carter Wood of the National Association of Manufacturers points to the current lobbying targets of the American Association for Justice -- the trial lawyers' lobby. There aren't too many surprises, but it is interesting to look at the list.

  • Notice pleadings in federal courts

This cause was formerly championed by former Sen. Arlen Specter, R-Pa. The idea here is to allow more latitude in fishing-expedition civil suits. Two recent Supreme Court precedents (Iqbal and Twombly)  effectively prevent some lawsuits from proceeding unless there is a real, plausible case to begin with that alleges specific acts of wrongdoing. Trial lawyers would like to loosen this standard and go back to what has been described as a "sue-’em-all, sort-’em-out-later" system.

  • Preemption of state causes-of-action involving drug manufacturers

The doctrine of "preemption" applies to certain products that are regulated by federal government.  Auto manufacturers, for example, cannot be sued over the design of a car (they can still be sued for a defective car) in state court as long as the design follows the federal standards. The idea is that you want the Department of Transportation and not some uninformed jury in rural Illinois telling automakers how strong an impact the roof of a cars should be able to withstand.

Trial lawyers, with a lot of help from President Obama, have been trying to nibble around the edges of preemption in several areas. (They tried to undo it for automobiles last year, and they got a helpful executive memorandum from Obama in May 2009.) The Supreme Court precedent they are seeking to overturn in this area (Riegel) has to do with medical-device makers. The pharmaceutical industry is one of them.

  • Various bills to restrict pre-dispute arbitration provisions in contracts.

Because if your credit card company can't make you come to the table in a dispute, you're more likely to hire a lawyer.

  • S. 623/H.R. 592 (Sunshine in Litigation Act of 2011); relating to the use of protective orders, sealing of cases, and disclosure of discovery information in federal civil cases. 

This bill has been kicked around for a long time, according to Wood. I'm not terribly familiar with it.

  • H.R. 966/S. 533 (Lawsuit Abuse Reduction Act of 2011); to amend Rule 11 of the Federal Rules of Civil Procedure to make sanctions mandatory.

This is the bill I wrote about a few weeks back, which would put teeth back into federal court sanctions against attorneys who file frivolous lawsuits. AAJ is really looking out for its bottom-feeders by lobbying against it.

  • S. 299/ H.R. 10 (Regulations From the Executive in Need of Scrutiny Act of 2011); to provide that major rules of the executive branch shall have no force or effect unless a joint resolution of approval is enacted into law.

Can Congress reassert its constitutional power at the expense of a president whose rulemaking is running amok? Don't expect this president to sign the bill.

  • H.R. 1 (Full-Year Continuing Appropriations Act); specific interest in House Amdt. 85 to defund the Equal Access to Justice program, and House Amdt.159 to defund the the Consumer Product Safety Commission Product Safety Database.

EAJA is intended to help people with legitimate claims against the federal government recoup their legal costs afterward. The idea is that an old lady who doesn't get her Social Security check shouldn't have to spend her life savings in litigation against the Social Security Administration in order to get her money.

Unfortunately, EAJA is badly abused by environmental groups who sue over policy matters (wolf endangerment, for example) and then demand $600 per hour in legal fees if they prevail (and sometimes even when they lose).

  • H.R. 887 (no short title); to direct the Secretary of the Interior to submit a report on Indian land fractionation, and for other purposes, specific interest in the modification of attorney's fees.

There is a huge dispute over the Indian Trust Settlement, and just how much the lawyers involved would get to take home. This bill would cap attorneys' fees at $50 million. They are seeking $223 million, with one attorney claiming to have worked several 4,000-hour year and a few 28-hour days (yes, that's impossible). A complaint filed this week by the Center for Class Action Fairness accuses them of botching the entire case, forcing their clients into a much smaller settlement than they might have otherwise gotten, and waiving many of the Indians' unrelated rights unnecessarily.

More money for lawyers? It's a no-brainer which side AAJ falls on here.

About The Author

David Freddoso

David Freddoso came to the Washington Examiner in June 2009, after serving for nearly two years as a Capitol Hill-based staff reporter for National Review Online. Before writing his New York Times bestselling book, The Case Against Barack Obama, he spent three years assisting Robert Novak, the legendary Washington... more
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