Edwards & Co.
July 12, 2004
By Walter Olson
John Edwards famously proclaims to all comers that he has no apologies about the cases he handled as a personal injury lawyer, which has not quite sufficed to prevent some of his best-known cases from coming under critical scrutiny.
In a Jan. 31 New York Times article, Adam Liptak and Michael Moss explored doubts about Mr. Edwards's lucrative specialty of blaming infants' cerebral palsy on mistakes by obstetricians, in particular their reluctance to perform caesarean sections. (C-section rates have skyrocketed under pressure from such suits, yet rates of cerebral palsy do not seem to have dropped as a result.)
In a Feb. 25 National Journal column, Stuart Taylor Jr. criticized Mr. Edwards's successful bid for $4 million in punitive damages against a trucking company after a crash, on top of $2.5 million in compensatory damages, Mr. Edwards's argument being that the company's practice of paying drivers by the mile had encouraged recklessness. (When he read the relevant passage of Mr. Edwards's book "Four Trials," Mr. Taylor happened to be sitting in the back of a taxi whose driver, like most cabbies, was being paid by the mile, an arrangement seldom deemed unconscionably careless.)
The Kerry campaign -- now trying vigorously to soften its running mate's business-bashing image -- counters that whatever grumblings may be heard from docs and other sore losers, Mr. Edwards at least wasn't the kind of plaintiff's lawyer who really gives the bar a bad name. He never sued whole industries in class actions, they've been pointing out, or grabbed big fees in cases where clients got peanuts. They might add that even his most vocal critics have not charged Mr. Edwards with using unethical means to chase business, or signing up people to sue who weren't really injured, or steering cases to "special" jurisdictions where he had a cozy relationship with the judge, or exploiting ties to political officials to shake the legal plum tree.
No, it's not Mr. Edwards who's done all those things -- it's many among his chief backers. What scares the daylights out of his business adversaries isn't just that Mr. Edwards is a seasoned trial lawyer who decided to switch careers, in the manner of Orrin Hatch, Ernest Hollings and others. It's that from day one he's been at pains to construct a tightly organized fund-raising and electoral machine whose dominant figures, with scarcely a known exception, are wealthy plaintiff's lawyers like himself. In fact, most of his key backers are drawn from the tiny handful of tort lawyers even more successful than he, sometimes by orders of magnitude. Mr. Edwards is estimated to have quit with $38 million, but that's pocket change to many veterans of the tobacco and asbestos wars.
Who are these men? A sampling:
• Fred Baron. The Dallas-based lawyer, a key Democratic kingmaker, served as the Edwards campaign's finance chairman, and his firm of Baron & Budd was the senator's No. 2 donor; some see him as the Smiling One's single most important backer. A former president of the Association of Trial Lawyers of America, he's already moved up to co-chair the key group coordinating Democratic and Kerry efforts, the Kerry-Edwards Victory '04 committee.
Mr. Baron also personifies many of the worst abuses of the asbestos litigation, which has already inflicted dozens of bankruptcies on American business and whose price tag is expected to spiral to $275 billion or more. Twenty years ago, the focus of this litigation was cases filed on behalf of seriously ill plaintiffs against companies that had played an important role in the asbestos trade; now, the docket is dominated by apparently unimpaired plaintiffs suing companies whose involvement with asbestos was comparatively peripheral. No firm is more closely identified with this shift than Baron & Budd, which has drawn fire from some plaintiff's firms (not to mention defendants) for its zeal in signing up outwardly unimpaired clients who then absorb money and court time that might otherwise have been devoted to the seriously ill.
It gets worse. In 1997 a junior Baron & Budd lawyer inadvertently handed over to opponents a 20-page memo entitled "Preparing for Your Deposition," which revealed exactly why the firm's clients so often testified in ways helpful to their legal case. "It is important to maintain that you NEVER saw any labels on asbestos products that said WARNING or DANGER," the memo advised. "Do NOT say you saw more of one brand than another, or that one brand was more commonly used than another. . . . You NEVER want to give specific quantities or percentages of any product names. . . . Be CONFIDENT that you saw just as much of one brand as all the others. All the manufacturers sued in your case should share the blame equally!" By dint of strenuous lawyering, Baron & Budd managed to weather the ethical firestorm, and Mr. Baron still defends his firm's conduct as lawful and proper.
• John O'Quinn. Mentioned as a possible gubernatorial candidate in the Lone Star State, the Houston-based contingent-fee king is another of the senator's crucial Texas backers. (The state's Democratic Chair Charles Soechting, the first state party chair to endorse Mr. Edwards, happens to practice law at Mr. O'Quinn's firm.) Admired for his ability to control the emotional tone of trials, Mr. O'Quinn has regularly taken numbingly complex cases, including dry financial disputes, and emerged with awards that magically add a zero or two to the expected number on the damage form.
Ask the Dow Corning company of Midland, Mich., which recently emerged from bankruptcy after the spurious but wildly successful breast-implant litigation, of which Mr. O'Quinn was the chief impresario, reaping tens of millions even as science refuted the notion that silicone was causing autoimmune disease. Defendants complained that they couldn't get fair treatment in the Harris County courts, to whose judges Mr. O'Quinn had been a major contributor; the Texan's run-ins with disciplinary authorities over the use of "runners" to attract business have also been well publicized.
• Tab Turner. Probably the best-known player in suits attempting to blame car crashes on automotive defects, the Little Rock-based Mr. Turner arouses unconcealed loathing from Detroit: In 2000, Ford V.P. for public relations Jason Vines called him "one of those sharks out there who think they've found the keys to the ATM" -- the sort of language one almost never hears from company PR operatives. Mr. Turner, whom a future Kerry/Edwards administration would do well to consult before picking a NHTSA administrator, has been closely identified with keeping alive the widely scoffed-at theory that subtle design flaws, especially in cruise control systems, cause "unintended acceleration" in cars. Coupled with the controversies over breast implants and the origins of cerebral palsy, this may keep life interesting for Kerry staffers who've been developing the theme that serious scientists prefer their candidate.
Mr. Turner's firm was responsible for one of the chief embarrassments to hit the Edwards campaign, when a law clerk stated publicly that firm higher-ups had assured staffers that they'd be reimbursed if they donated to the senator's White House run; the Justice Department's Public Integrity Section opened a criminal probe. Mr. Turner himself, puzzlingly, spoke to reporters as if he hadn't realized that the practice was unlawful. The Edwards campaign promptly announced that it was returning $10,000 in donations, which still leaves Turner & Associates as Mr. Edwards's No. 5 donor in the Center for Public Integrity's tally. Reporters have found a nationwide pattern of paralegals and office administrators at other law firms maxing out, even though some weren't registered to vote and others had lately suffered bankruptcies and other financial reverses. (All sides deny wrongdoing.)
• Paul Minor. A key early backer and the 10th-ranked donor to Mr. Edwards's campaign, this former president of the Mississippi Trial Lawyers Association has been distracted lately by his indictment over charges of extortion, fraud and bribery in an influence-peddling scandal at the Mississippi Supreme Court. Trial is scheduled to begin Aug. 16 in Jackson. Mr. Minor denies all wrongdoing.
Famously unapologetic, the Edwards campaign merely shrugged this spring when Sen. Kerry's press secretary assailed the North Carolinian's White House bid as "wholly funded by trial lawyers." More remarkable yet was how Edwards's spokeswoman Jennifer Palmieri had earlier responded to similar sniping: "We have no problem if 100% of our money came from trial lawyers." On the relatively few issues on which Mr. Edwards has taken a high profile in the Senate, agenda items for the trial bar (e.g., blocking limits on future post-terrorism lawsuits) have comprised a high share. There's every reason to believe that the men behind Mr. Edwards have a clear expectation of entering Washington next January as victors, and closer to the center of power than they've up to now dared to dream.
Mr. Olson, senior fellow at the Manhattan Institute, is the author of "The Rule of Lawyers," just out in paperback from St. Martin's.
©2004 The Wall Street Journal
About Walter Olson: articles, bio, and photo