Brad DeLong's Semi-Daily Journal (2004)

There were some other things going on, too. While resigned to having a vote on a minimum wage amendment, there were other Democratic amendments coming that Frist didn't want to vote on. So he broke the Senate rules, trying to insist on only "germane" amendments (a House, not a Senate rule), and then, trying to limit amendments, "filled the tree" himself (offered all the amendments), thereby frustrating several Republican Senators who had been planning to offer amendments also. Far as I can tell, Frist angered about 75% of the Senate (and caused Minority Leader Daschle to charge him with bad faith) over this one. Is it that Frist can't, doesn't know how, or won't try to be a competent Majority Leader? No wonder he fell short of enough votes for cloture. Frist, far from valuing and protecting the institution of the Senate, is trying to break Senate rules in slavishly following the Bush ideological position of the moment. Not a good way to develop a reputation as a Congressional leader. if Bush is our worst president, Frist is bucking for worst majority leader.

Charles

I think that what Frist was most afraid of were germaine amendments---like including the provisions of the Patient's Bill of Rights in the bill.

Frist is PERSONALLY involved in Big Medicine-- and the level of conflict of interest in this more is pretty extreme....

I think the basic analysis is correct. My example is a bank-backed, anti-consumer Bankruptcy "Reform" bill that has been inches away from enactment for several years. Something always comes up to prevent it. I have long since concluded that there are many in Congress who, knowing that all the money is one side, have no interest in voting or speaking out against it, but don't mind a bit when it comes a cropper yet again. Come back next year, Mr. Lobbyist, with your checkbook.

As I understand it, the truckers are currently very upset with the House, and Donohue is a former head of a Trucking association, so perhaps he has more involved here than just the current situation?

So many business PACs responded negatively to the Edwards selection that even a call from Donohue wouldn't seriously worry Frist. I link to many of the stories here (http://tinyurl.com/3dusl), but the most germane is this one from The Hill (http://tinyurl.com/2loks). Donohue of the Chamber, Dirk Van Dongen, president of the National Association of Wholesaler-Distributers, the National Federation of Independent Business, Greg Casey, president of the Business-Industry Political Action Committee, David Rehr, president of the National Beer Wholesalers Association, and Michael Baroody, executive vice president of the National Association of Manufacturers all panned the Democratic ticket.

I agree that the point is campaign contributions, and Ken is exactly right about that foolish bankruptcy bill, so loaded with goodies for large capital at the expense of unsecured creditors, and so punitive towards the financially inept or unlucky.

I heard some guy on Sound Money make that exact point one day: that the bill only came up at the end of each session, and always died of some foolishness, leaving Visa and the big car companies pecking away like one of Skinner's pigeons, sure that the next peck would bring a kernel of corn.

I don't know if there is a better place to discuss this, so here I go.

What, exactly, will happen with the GOP attacks on John Edwards as a trial lawyer? I gather, if the facts are put out there in a competent way, not much at all, if we can believe Al Hunt's last column from The Wall Street Journal. If what he says is accurate, as it seems to be, then the Republicans don't have much to throw at Edwards. Look here:

On the narrower issues, the political critics distort Mr. Edwards' work before he came to the Senate. There are, to be sure, sleazy trial lawyers; he wasn't one of them.

He won huge verdicts on behalf of people who were victimized by insensitive companies, inattentive hospitals or inept doctors. When the Bush-Cheney cheerleaders talk about ambulance-chasing or "jackpot justice," they should cite particulars, like the parents of Bailey Griffin. She was born severely brain damaged, and Mr. Edwards won a multimillion-dollar judgment after a jury found negligence; she died at age six. Her father says he doesn't feel like a big winner or a rip-off artist when he visits "my daughter's grave."

There is a real legal/economic problem with huge class-action lawsuits and massive judgments, where some beneficiaries were barely affected. John Edwards wasn't one of these lawyers. The courts are clogged, chiefly because of businesses suing other businesses. That wasn't his forte either.

He did a lot of medical malpractice where some reforms are needed; it's a system that threatens some good medical practitioners, especially specialists like obstetricians and neurosurgeons. But virtually every expert says big judgments, a rarity, and lawyer's contingency fees are only a small part of this problem; the Congressional Budget Office estimates the tort reform measures sought by the White House and Congressional Republicans would reduce health-insurance premiums by only one-half of 1%. And it would shut out some victims.

http://online.wsj.com/article/0,,SB108923932514457868,00.html?mod=opinion%5Fcolumns%5Ffeatured%5Flsc

This is some of what Senator Fritz Hollings had to say about Tom Donohue's attack on Edwards. You can find the entire text of his speech in the Congressional Record.

So what have you. Now comes the Chamber of Commerce being admonished by Tom Donohue that we can't have this wild, crazy Senator from North Carolina, which is a bellwether of industrial development. That is where he was grown and that is where the people who sent him know him best. And now we are going to have him depicted by Johnny-come-lately to business over at the Chamber of Commerce after heading up the trucking association for years and totally skew trial lawyers.
You know, I have tried to go quietly, and I have stayed off the floor a good bit this year. I have had my time. But I still struggle. I can't keep quiet when I hear all of this lawyer talk. I practiced law on both sides of the aisle. I represented the electric and gas company and the bus system. If you want to represent a defendant, represent the local power company buses. I can tell you, come November, everybody slips on a green pea in the aisle; everybody gets their arm caught in the door; everybody gets their head bumped or whatever else it is. And do you know what. They bring these little claims. When I say little, in those days they were relatively little--$5,000 claim, $10,000 claim. And the corporate lawyer was lazy. They didn't try the cases. So they settled them out of court and they just paid.
You see, corporate lawyers are the most lazy group in the United States. So I backed up all those claims and took them to court all during the month of December and the Christmas holidays and into January. And I won my bet with Arthur Williams who was president of the electric and gas company. I saved them over $1 million at that particular time. The only reason I mention this, you don't brag but you have to talk to the record. And what happens is that I have been on the side of the corporate practice as well as the plaintiffs practice in punitive damages. I know all about them. I have had a hard experience with them. I have had a hard experience with every Chamber of Commerce in my State and with the national group. When Tom Donohue starts this talk about lawyers, if he wants to really save corporate money, I wish he would go to the corporate lawyers.
They talk about frivolous claims. Who in the Lord's world as a trial lawyer can afford to be frivolous? They have rules of court that get you out. Tomorrow you can file, if you assume all the facts alleged in the complaint as being true. You still don't have a cause of action or, if it is a frivolous charge, you can take it up under rule XI and have it done up. The courts take care of these things, but the pollsters are like used car salesmen and kill all the lawyers and go after trial lawyers who have to work for a living. What does the trial lawyer do? The trial lawyer says: Poor client, haven't you been offered anything for this particular injury? They said no. Or sometimes they said yes, but they only said $200 or $2,000 or $20,000, and that is not going to take care of my medical expenses for more than a year.
We don't get cases as trial lawyers. Talking about ambulance chasers, I don't know how you chase an ambulance, to tell you the truth. I have been in practice now for--well, I got in in 1947--over 50-some years. I practiced law up here. It is just like making a jury argument. The only thing about it is, you can serve on the jury and you can vote. I like it better. But the point is that we usually get the client, once his incident, his accident, his claim has been totally investigated by corporate America. I know them. I represented them. They have investigators. All you have to do is tell them, go see this, go see that. When you have investigators to go out and check the jurors: Go around, by gosh, in a particular neighborhood and ask questions. What kind of fellow is John Adams? Is he liberal or conservative? Has he ever had a law case before? They have all the resources in the world.
But the trial lawyer gets it after the cake is done and you can't hardly rise it. And it is done falling flat, and the poor client is disconcerted and disillusioned and finally gets to you. The last case I tried I said, Did you go to so-and-so? He knows this kind of case better. And I went to another one and another one and everything else of that kind. And it was an antitrust case. I had to brief myself, antitrust work. Finally I tried that thing. But what I am trying to say is, get off of this ambulance chasing issue. No trial lawyer, all the ones that you read about--Fred Baron, in one of the articles, an eminent attorney, head of the American Trial Lawyers Association from Texas. They work. They know what they are doing. And they take on all the expenses, the investigations, the making up of all the models that have to be made, pay the photographers who have to take the pictures. In some instances, they pay the medical bills going along. They take a risk and take that case on as their own. Why? Because they don't get one red cent until they win. They have to win all the way through, taking the expenses of all the interrogatories, all the depositions, all the motions, all the delays, all the frivolity of corporate America because that corporate American is sitting up there on the 12th or the 25th floor, and the clock is running.
The biggest cancer we have in the law practice is billable hours. This crowd down here on K Street is nothing but billable hour boys. They don't try cases. They fix you and me. And they are the ones who have the unmitigated gall to come and talk about frivolous claims. They never go to work. They take you to a dinner, take you to a movie, take you to a weekend down to the golf course, take you out to Alaska fishing, take you anywhere you want to go. They never try cases, but the trial lawyer does. He has to get prepared, and he has to work, and he has to not only try that case that might take a day, might take a week--some cases take several weeks and months--but as they try that case, they are carrying those expenses all that time.
But the corporate lawyer is trying to delay it. It pays them because their clock is running. It pays the trial lawyer to get on with the business of trying the case and bringing it to a conclusion. I know, I have been there on both sides. What do you have to do? He has to get all 12 jurors--all this about runaway juries. There are some exorbitant verdicts. I have seen in the headlines. When we get to debating this thing, maybe on legal fees, or class actions, or medical malpractice, or whatever it is--if the doctors policed themselves as the lawyers, they would not have any medical malpractice.
There was a headline down in my own backyard how nationally they had about 100,000 injuries and deaths last year as a result of medical malpractice. It would be 200,000, or 300,000, or 500,000 if we didn't have medical malpractice. What do you think the purpose is of being able to recover for somebody else's wrongful act? Heavens above, we [[Page S7723]] have to get all 12 jurors. I can tell you now, that defendant, all he has to do is get one. Just like they had one on a recent criminal case of some kind. They held that thing up and held it up, and that one juror said he just wasn't convinced.
The jury system is the fundamental of not only the British but the American system of jurisprudence. We have many sayings of not only Winston Churchill and Alexander Hamilton, the forefathers about the importance of trial by jury, because when you get a group of your peers together, they will listen to the facts and make an honest judgment about it. Sometimes if they do go extreme, the trial judge can set it aside, or give them an entire new trial, or just no verdict at all. One of the last cases I had, I had over $40,000 in costs and expenses--not time, no. I didn't have any clock. I never heard of billable hours.
Senator, I have never practiced law for a billable hour. It means if you send the case or dispose of the case and everything else like that, you lose. The corporate lawyer wants to keep all the cases going. He has all the hours. He just goes to the club, and on the weekend he is off with the chairman of the board, and that is all he has to do. They keep delaying things.
You talk about my friend, John Edwards, is a liberal, some kind of nut and some kind of frivolous nonsense here. He has worked hard, and the Chamber of Commerce ought to know that. Let's talk a minute about trade itself. ... ... ...
Yes, Senator Edwards has worked not only on the Intelligence Committee, knowing foreign policy for 6 years now. In one of the stories, they said if something happened to John Kerry, we would have a President with no experience again. The only thing is, this President [Bush], Edwards, would be interested in being President. President Bush is only interested in being Candidate Bush. He goes out every day to some military or some police or other particular situation, gets that 7 o'clock news photo, makes his little statements, and he does not keep up with any of the legislation. He is not proud of any legislation. We do not have any leadership from the White House on getting anything done.
We are getting little nagging spitballs of class actions and-- what is that other thing--a constitutional amendment on marriages. One can get a common-law marriage in South Carolina. Are we going to put that in the Constitution? Come on, a big national problem. He has more funny bunny things to think of and bring up and waste our time. It is the worst administration I have ever seen.

Why do you have more confidence in the Federal Courts over the State Courts? Federal Judges are just lawyers who are friends of a Senator. State Judges are just lawyers who are friends of a Governor. Both need to buy their way onto the bench to some degree by giving campaign contributions to political candidates and office holders. Federal Judges tend to come from large, corporate defense oriented firms or the office of the US Attorney. State Judges are more of a mixed bag with respect to their backgrounds. It is difficult for large, corporate defense lawyers to walk away from high six figure and seven figure pay packages to take a State judgeship. The lifetime appointment and prestige of being a Federal Judge can sway some to give up such lucrative legal careers. But the big big money for Judges then comes after retirement, when they become private judges, mediators and settlement judges. The fees are astronomical, I know of a retired Federal Judge who charges $8,000 a day to act as a mediator -- and gets paid up front and gives nothing back if the case doesn't settle. I don't think that Federal Judges work harder than State Judges. I don't think they are smarter either, despite what you may hear to the contrary. One problem I've experienced is Judges who have criminal law or law enforcement background and get assigned to civil business cases. I have seen more than one case cocked up by a Judge who has no clue about business. There is also the problem Federal Judges having both civil and criminal matters on their calendars. Since criminal defendants have a right to a speedy trial, civil cases are constantly pushed aside to make way for criminal trials. I had a case in US District Ct in Arizona where the Judge told us flat out "this case will not be tried in this court within five years if ever." We either had to wait or agree to try the case before a Magistrate, not the District Court judge. The Arizona Court and the Southern District of CA in San Diego are so back logged with drug and illegal immigration cases that civil cases do not get tried. State Courts, at least in CA, have separate courts for civil and criminal matters, so former prosecutors tend to be assigned to the criminal courts. So another reason for the Chamber of Commerce wanting to force classactions to Federal Court is to simply slow down the process. Again, the other reason is that District Court judges tend to be defense oriented and therefore have a bias against claims in the first place. So, personally, I just get this preference for Federal Courts unless you favor big corporations.

Why do you have more confidence in the Federal Courts over the State Courts? Federal Judges are just lawyers who are friends of a Senator. State Judges are just lawyers who are friends of a Governor. Both need to buy their way onto the bench to some degree by giving campaign contributions to political candidates and office holders. Federal Judges tend to come from large, corporate defense oriented firms or the office of the US Attorney. State Judges are more of a mixed bag with respect to their backgrounds. It is difficult for large, corporate defense lawyers to walk away from high six figure and seven figure pay packages to take a State judgeship. The lifetime appointment and prestige of being a Federal Judge can sway some to give up such lucrative legal careers. But the big big money for Judges then comes after retirement, when they become private judges, mediators and settlement judges. The fees are astronomical, I know of a retired Federal Judge who charges $8,000 a day to act as a mediator -- and gets paid up front and gives nothing back if the case doesn't settle. I don't think that Federal Judges work harder than State Judges. I don't think they are smarter either, despite what you may hear to the contrary. One problem I've experienced is Judges who have criminal law or law enforcement background and get assigned to civil business cases. I have seen more than one case cocked up by a Judge who has no clue about business. There is also the problem Federal Judges having both civil and criminal matters on their calendars. Since criminal defendants have a right to a speedy trial, civil cases are constantly pushed aside to make way for criminal trials. I had a case in US District Ct in Arizona where the Judge told us flat out "this case will not be tried in this court within five years if ever." We either had to wait or agree to try the case before a Magistrate, not the District Court judge. The Arizona Court and the Southern District of CA in San Diego are so back logged with drug and illegal immigration cases that civil cases do not get tried. State Courts, at least in CA, have separate courts for civil and criminal matters, so former prosecutors tend to be assigned to the criminal courts. So another reason for the Chamber of Commerce wanting to force classactions to Federal Court is to simply slow down the process. Again, the other reason is that District Court judges tend to be defense oriented and therefore have a bias against claims in the first place. So, personally, I just get this preference for Federal Courts unless you favor big corporations.

Democrats should call the GOP's bluff on trial lawyers, and not just by highlighting the unending hypocrisy of the party of corporate cronyism cynically attacking trial lawyers. Democrats should pursue true tort reform in a grand compromise implementing limited caps on damage awards in exchange for full disclosure from and public regulation of physicians and other health care providers. Call it “Show, Tell and Save.”

For more, see:

"The Trial of John Edwards: A Democratic Strategy for Populist Tort Reform"

http://www.perrspectives.com/articles/art_trial01.htm

Jon, I didn't yet read the link you posted, but if we can believe Al Hunt from WSJ, then we don't have nearly as much to worry about as we thought.

What worries me a little more is the Democratic party's trade/tax positions. Does this piece from The National Journal - http://nationaljournal.com/crook.htm - touch on anything significant? I've concluded that, more or less, Kerry and Edwards are free traders and that they pander, however unfortunately, to the labor unions. Basically, we won't see any Kucincich style moves, like pulling out of the WTO, from Kerry and Edwards.

As an aside, if the U.S. Chamber of Commerce abandons its "traditional neutrality" and engages in partisan campaigning, won't the organization jeopardize its non-profit tax status?

Right on to what Cal said. I like this blog but, seriously, what the fuck do you know about it, Professor DeLong? Do you try a lot of cases in federal court? I worked for a district court when I got out of law school and I can tell you, the only effect of the Class Action Fairness Act will be to ensure that the federal courts can't function at all. Which is what the Republicans in Congress want. They don't give a shit about whether the judiciary, state or federal, can operate at all.

Jeff Schultz

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