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The New York Sun

 

Kerry's Crafty Operator

July 07, 2004

By Walter Olson

The Republican National Committee thinks it's got plenty of ammunition to use against Senator Kerry's vice presidential pick, Senator Edwards: his voting record, the fourth most liberal in the Senate last year, according to National Journal; his pronounced lack of experience in governance and specifically in military and foreign matters; the contrast between his hush-puppy populism and the luxe trimmings of his lifestyle - when the Edwardses traded up from their Massachusetts Avenue mansion in Washington, D.C., to an even nicer mansion on P Street, they disposed of the old one for $3 million to the government of Hungary to use as its embassy.

Central to the attack is going to be Mr. Edwards's status as a phenomenally successful trial lawyer, who after amassing a fortune of at least $38 million in his home state of North Carolina went on to politics and a national role as spokesman for the litigation biz second in effectiveness only to Ralph Nader himself.

One early consequence of Mr. Edwards's selection, it seems safe to predict, will be to galvanize the business and medical communities. The U.S. Chamber of Commerce, for example, has vowed to abandon its usual stance of neutrality and work actively against an Edwards-Kerry ticket.

As for doctors, before entering politics Mr. Edwards won some of his biggest contingency fees representing families of children with cerebral palsy against the M.D.'s who'd allegedly botched their deliveries - although a pile of research dating back to the 1980s tends to refute the popular theory that this affliction is commonly caused by obstetricians' conduct during labor and delivery. (Mr. Edwards himself is careful to claim that he took on only very strong cases.)

The issue had already surfaced in the Democratic primaries. In discussions of the skimpiness of Mr. Edwards's senatorial record, for example, it was sometimes noted that the short list of legislative objectives for which he's been willing to go to bat include many important to his trial lawyer confreres, such as blocking limits on post-terrorism lawsuits.

It was Senator Kerry's press secretary - not some Bush operative - who earlier this year described Mr. Edwards's campaign as "wholly funded by trial lawyers," and the response to such criticism by Mr. Edwards's spokeswoman, Jennifer Palmieri, was more revealing yet: "We have no problem if 100 percent of our money came from trial lawyers."

The GOP's criticisms will perhaps be tinged with envy, though, because Mr. Edwards is now certain to place at Kerry's disposal one of the most fabulous political fund-raising machines in all history. That lawyer-driven machine did extremely well for Mr. Edwards in the primaries; the only reason it didn't do even better is that it ran into the ceilings imposed by federal election finance law, which limit donations from individual donors to $2,000. In fact, Mr. Edwards raised a bigger proportion of his campaign war chest in $2,000 donations than any of his Democratic rivals. The list of donors who maxed out included not only the expected plaintiff's attorneys and their spouses, but also a roster of low-paid paralegals, receptionists, and other support staffers of law firms along with their spouses - even though (as an investigation for the Hill revealed) some of the staffers had recently suffered bankruptcies and other personal financial reverses and some were not recorded as having voted in years.

"In many instances, all the checks from a given firm arrived on the same day - from partners, attorneys, and other support staff," reported The Hill. The law-firm employees duly denied that their employers had signaled any willingness to reimburse the donations - that would constitute a violation of federal law, after all. But pursuing the money trail was not easy, since Mr. Edwards, alone among major candidates, refused to disclose the identities of the big financiers who bundled checks for him, a stance that drew fire from places like the editorial page of the Washington Post.

Impressively, throughout all this, Mr. Edwards managed to make a personal selling point of his proclaimed freedom from entanglement with those dreadful special interests. It's in the field of rhetoric that the senator's career skill in jury persuasion really comes through for him. As journalist Stuart Taylor Jr. puts it, Mr. Edwards sounds as if he really, truly believes "that behind every misfortune there must be a wealthy villain" - at the grand level of national policy just as in the particulars of an individual client's calamity. It's as if Michael Moore checked into a spa and finishing school and emerged with good looks and polished manners: No wonder party activists swoon.

Significantly, Mr. Edwards has already moved to inoculate himself against the charge that he is nothing more than a spokesman for his interest group. Asked about so-called frivolous litigation, he says forthrightly that it's wrong and he would stop it - an interesting departure from the usual trial lawyer songbook, which tends to begin with the idea that what seems frivolous to one observer may not seem so to another and proceeds to the conclusion that any curbs on such litigation would therefore endanger legitimate suits.

Mr. Edwards is aware, of course, that the currently regnant definition of "frivolous" in American courts is much narrower than many lay people realize - a lawsuit can be thoroughly erroneous in its factual basis without being frivolous - which means his concession does not concede nearly as much territory as listeners may think it does.

There's more. In an op-ed last year, Mr. Edwards went so far as to endorse a notion that goes beyond anything the tort reform movement has promoted: "Lawyers who file three frivolous cases should be forbidden to bring another suit for the next 10 years - in other words, three strikes and you're out." Sounds like strong medicine, doesn't it? But - as Mr. Edwards surely knows - this particular proposal is utterly unlikely to win enactment at the federal level, the only level he need care about. One reason is that most lawsuits go forward in state court and Congress has little interest in micromanaging the disciplinary practices of the 50 state court systems. So it serves the purpose of a free and handsome gesture, with little danger that it will actually go anywhere.

He's a crafty operator. Republicans should not underestimate him.

 

 
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