By: Daniel Fisher
A party scheduled this week in Houston is spreading anguish among tort-reform supporters who worry that Sen. Lindsey Graham of South Carolina will split with fellow Republicans to block bills designed to diminish the power of class-action lawyers, curb medical malpractice suits and open the books on asbestos settlements.
Texas attorney Mark Lanier is co-hosting a fundraiser for Graham on Thursday night, spreading talk among conservatives that Graham has allied himself with plaintiff attorneys who have a huge financial incentive to block bills that sailed through the House of Representatives earlier this year. Graham sits on the Senate Judiciary Committee, which is split 11-9 between Republicans and Democrats. If he defects -- or even leads Chairman Chuck Grassley to think he's going to defect -- the committee would be stuck in a tie and the bills could die in committee.
It's not an outlandish scenario. Graham is a former Air Force attorney who worked as a trial lawyer before being elected to the Senate in 2002. He boasts in his memoir about convincing a jury to award $5 million to a college student who was left paralyzed after a drunken car accident. "A courtroom is where the lowliest victim should find justice and the highest wrongdoer receive just punishment," Graham wrote. "That’s what makes the law a noble profession, its impartiality and fairness.”
Trial lawyers also are an important economic force in South Carolina, and Graham has accepted large donations from firms including $33,551 from Motley Rice and $43,350 from Harrison White, according to Opensecrets.org.
The House last month passed the Fairness in Class Action Litigation Act, which would make it harder for lawyers to win quick settlements by tightening the requirements for certifying a class of plaintiffs and pegging legal fees to the amount of money distributed instead of the theoretical value of a settlement. Another bill would make it easier to obtain sanctions against lawyers for pursuing frivolous cases. A third would require bankruptcy trusts that pay benefits to asbestos plaintiffs to open their records to the public, making it harder for lawyers to obtain money by suing companies under conflicting theories about how their client was exposed to asbestos.
By sponsoring a fundraiser for Graham in Texas, Lanier raises questions about whether the South Carolina Republican will support these bills in the Senate. Lanier describes himself as a "lifelong Republican" but has won billions of dollars in jury verdicts over Vioxx, hip implants and other products. He told Texas Lawyer he "may better be positioned than a lot of plaintiff lawyers to catch the ear of Republicans" and convince them litigation rules should be left to state and local courts.
An invitation for the event says seats are priced from $100 to $5,400. It is co-hosted by Kenneth Starr, the former special prosecutor who bedeviled President Bill Clinton but who also has worked on high-profile plaintiff cases. The event also features Texas Republican Congressmen Ted Poe and Mike McCaul.
Plaintiff lawyers are working hard to portray the reform bills as undermining trial by jury, even though they address practices lawyers use almost exclusively to obtain larger settlements and fees in federal courts. Class actions rarely go to trial, for example, and the bulk of asbestos payments are also worked out in settlements and through bankruptcy trusts.
In an e-mail to potential attendees reported by Texas Lawyer, Lanier said "no Republican is as solid on the right to a fair jury trial as Senator Lindsey Graham." Graham nevertheless voted in favor of the Class Action Fairness Act of 2005, a major reform that pushed many class actions into federal court where corporate defendants feel procedures are more in their favor.
But Graham's memoir leaves little doubt about how he feels about jury trials generally.
“Justice isn’t delivered by an elite, by experts, by the high and mighty," he wrote. "A jury of your peers decides. Courtrooms are sacred places in a free society, where every citizen stands equal under the law.”