Why are Members of Congress working in lockstep with the trial lawyer industrial complex to help this infamous interest group make even more money off our backs?
Since the 1990s, when litigators made more than $8 billion in fees from tobacco-related settlements, trial lawyers have constantly invented new product liability theories in the never-ending quest to line their pockets. From lawsuits blaming energy companies for climate change to litigation about Starbucks putting too much ice in its drinks, it seems that just about every productive business in America is a target for the trial bar. One learned observer rightly described this lobby’s modus operandi as “the endless search for a solvent bystander.” Their actions put a burden on thousands of businesses and millions of employees nationwide.
Of course, in most cases, the true beneficiaries of these lawsuits are the lawyers who file the cases, not the victims. Attorney’s fees frequently consume up to 40 percent of the total settlement, leaving the plaintiffs with a mere pittance — often, as low as pennies.
To defend themselves from these predatory lawsuits, many businesses have used a legal strategy called the “Texas Two Step,” in which they move their suits from jury trials to a bankruptcy court, where fact-based judges handle and process claims quickly and efficiently. This tactic still ensures that every deserving claimant gets paid. The only thing that changes is that the trial lawyers get cut out of the process — which often means that claimants receive significantly more money than they otherwise would have, and that businesses avoid complete bankruptcy and the ensuing lost jobs.
Most of the nation’s top legal minds, who are all too familiar with the trial bar’s predatory tactics support the Texas Two Step. The process is explicitly permitted by congressional statute, and in May, the Supreme Court declined to hear the trial bar’s challenge to this legal process.
Now, the trial bar — never one to take no for an answer, and always looking for ways to make another quick buck off its next victim —is seeking to convince Members of Congress to do their dirty work for them. With this special-interest group’s political action committee spending over $2 million a year, it doesn’t come as much of a surprise that some Members of Congress have obliged their benefactors by introducing legislation in late July to stop the Texas Two Step.
“Protecting the trial bar” doesn't sound great in a legislative press release, so the bill’s supporters are instead arguing that their legislation will stop companies from “delaying justice.” That’s the last thing the Texas Two Step does, and these members know that. Once a business moves forward with the Texas Two Step, suits do often get delayed, but that is because of the trial bar’s actions, not the process itself.
In a desperate attempt to preserve these cases, the trial bar issues repeated dismissal motions and defies the court-sanctioned discovery processes, which can sometimes delay case resolutions by years. The Fourth Circuit Court of Appeals has noted such tactics; it has observed that ongoing attempts to circumvent the bankruptcy proceedings are contributing to their backlog of cases.
Lawyers can – and do – contribute to the rule of law, and protect the legitimate interests of their clients. By engaging in predatory lawsuits, and seeking favors from Congress, they are doing just the opposite.
Congress should resist the pressure from the trial lawyer lobby and reject any legislation to further shift the legal landscape in the plaintiff bar’s favor. It has already received enough political giveaways and largesse over the years. It doesn’t need to tip the scales of justice any further than it has already.
