Back in 2006, the lobbying group for the organized plaintiffs’ bar changed its name from the “Association of Trial Lawyers of America” to the “American Association for Justice” (AAJ) in a bid to claim a monopoly as the ones fighting “for justice” in America. The trial lawyers hoped the name change would help shake public perceptions of greedy, ambulance-chasing lawyers and recast trial lawyers as heroes to take on villainous corporations. This narrative, however, rings hollow when looking at positions AAJ actually takes that do not match up with the public’s interest.
One example is trial lawyer opposition to the Public Readiness & Emergency Preparedness Act or PREP Act, a 2005 law that promotes innovative efforts to develop vaccines and other drug treatments or “countermeasures” in times of a public health emergency. This law is especially relevant now, given the COVID-19 pandemic. The PREP Act’s approach is to establish a mechanism for vaccine manufacturers and other entities to obtain liability protection that mitigates concerns about potentially unbounded liability exposure.
Without the PREP Act, the public might not have the multiple vaccines we do today to combat the COVID-19 pandemic. Vaccines also likely would not be as widely available to the public.
Trial lawyers vigorously opposed the PREP Act. AAJ’s lobbying efforts in the current Congress also seek to limit or eliminate the Act’s liability protections. Hence, the trial lawyers are working to roll back legislation that has proven vital to combatting this pandemic and will be needed to assure the threat of lawsuits does not impede research and development of vaccines to combat future pandemics.
A second indication of trial lawyer malice is AAJ’s opposition to liability protections for health care providers who voluntarily render care, such as in an emergency situation. Legislation has been proposed at the federal and state levels to protect these and other volunteers from unsound liability exposure.
Legislation is needed because liability law has a strange twist that discourages life-saving volunteer efforts. A person generally owes no legal duty to aid a stranger in peril, and is actually best-positioned to avoid liability by simply ignoring another’s cries for help and walking away. Yet, if a person volunteers to render aid and is unsuccessful, that person might be sued.
Many years ago, Congress overcame trial lawyer opposition and enacted the Volunteer Protection Act, which provided some general protections to volunteers in emergency situations. Legislation, though, is still sorely needed in the context of medical professionals to encourage those best able to render aid to do so. Trial lawyers want to keep the door open to lawsuits, even if it creates an environment where would-be saviors feel compelled to think twice before trying to save someone else’s life.
Trial Lawyers have also opposed meaningful sanctions against those who bring frivolous lawsuits. In federal courts and in most states, sanctions against frivolous claims are extremely weak and rarely invoked. Victims of frivolous lawsuits, such as small businesses, often have no clear remedy, which makes them an easy target for shakedown lawsuits. Trial lawyers frequently seek nuisance payments to make baseless claims “go away.”
While the vast majority of trial lawyers do not bring frivolous claims, this fact has not stopped AAJ from protecting those who do. The organization has opposed legislation to strengthen sanctions against frivolous claims, such as the Lawsuit Abuse Reduction Act that has passed the House of Representatives several times. AAJ has done so even though it is plainly against the public interest to allow frivolous lawsuits and legal shakedowns to continue with relative impunity.
Fourth and finally, trial lawyers have opposed restrictions on ads that endanger the public. You have probably seen ads on television or elsewhere that suggest that taking certain medicines could be harmful, and that consumers might be able to bring a lawsuit and collect money. These ads are often the product of lead generators who compile and sell lists of potential plaintiffs to trial lawyers. In many cases, these ads are not only misleading and deceptive, but they can actually endanger lives by frightening patients into reducing or no longer taking needed medications without consulting their doctors.
Trial lawyers keep defending such advertising on free speech grounds, but free speech does not protect ads that deceive patients and cause them harm. The trial lawyers are really interested in protecting a key revenue stream, regardless of how much harm it causes. They have even opposed requirements for a modest caution in such ads, to “see your doctor before you stop taking this medicine.”
These four areas — and this is by no means an exhaustive list — demonstrate trial lawyers’ bad faith. Their goals frequently stand at odds with the public interest. In spite of a name change and many years of trying monopolize the notion of being “for justice,” the reality is trial lawyers are no different from any other self-interested group focused on making money.
Mr. Schwartz is a former law professor and law school dean, and current co-chair of the Public Policy Group of the law firm Shook, Hardy & Bacon, LLP. He is co-author of the most widely used torts casebook in the U.S., Prosser, Wade & Schwartz’s Torts: Cases and Materials (14th ed. 2020).