Three-and-a-half months after Hurricane Katrina, the water in New Orleans has receded. And trial lawyer Calvin Fayard, a top fund-raiser for Sen. John F. Kerry’s presidential bid last year, sees the city coming back to life.
Fayard, whose family has been active in state politics for years, has been through the turmoil and sees the flood tragedy as yet another front in the battle with the Bush administration over tort reform _ a battle he and the Trial Lawyers of America say would have been moot under a Kerry administration.
The Kerry-Edwards campaign praised Fayard as a fund-raising superstar, rounding up at least $50,000 for the campaign. But it wasn’t enough for victory, and now he and his brethren, and other pro-Kerry interests, are feeling the sting of defeat.
“I agree that each party tries to maintain the best for its constituent base, and it all goes back to the platform of the party. With Democrats, it’s policies that are more to the lawyer end,” Fayard said. “I thought John Kerry was the best man for the job.”
For trial lawyers, laws enacted in these past six Bush years, and other GOP-sponsored proposals, squarely target their profession. Hospitals, nursing home chains, and insurance companies have spent millions lobbying elected officials and the public for tort reform, painting trial lawyers as the reason for increased insurance premiums and as a danger to the health care system.
“The other side has spent decades and billions of dollars to get the public to believe a story that isn’t true, but they’ve told the story (about trial lawyers) for a reason and the efforts have been funded by tobacco and big corporations. Those are the Bush supporters,” said Chris Mather, spokesman for the Association of Trial Lawyers of America.
Tort reform partly explains why 152 (or 27 percent) of Kerry’s 563 top fund-raisers, dubbed “Vice Chairs” and “Chairs,” are listed as lawyers. They raised at least $50,000 each for the Kerry-Edwards campaign. Kerry’s running mate, former U.S. Sen. John Edwards, was himself a millionaire contingency-fee trial lawyer by trade.
The number contrasts to the 32 lawyers (or 6 percent) on Bush’s list of 548 “Pioneers” and “Rangers,” those who raised at least $100,000 for his re-election campaign.
The American Tort Reform Association supports measures that would cap jury awards, arguing that insurance companies have to know their liabilities so they can accurately set premiums, said Gretchen Schaefer, spokesman for the organization.
“There’s nothing that’s been proposed that would hurt anyone’s right to a fair trial,” she said. “There’s a huge access to health care issue (in this country).”
The group created a Web site to track the support coming from trial lawyers to the Edwards campaign for president, which he eventually abandoned to become Kerry’s running mate.
“They would have passed a pro-litigation, anti-business agenda,” Schaefer said of a successful Edwards ticket.
Over his six years in office, Bush has championed measures that would shield certain corporations from lawsuits. Several of the proposals resulted from Hurricane Katrina and the looming threat of a bird flu pandemic. They include:
The HEALTH Act of 2003, which stands for Help Efficient, Accessible, Low Cost, Timely Health care. It passed the U.S. House last year. The bill, supported by the president, would cap some pain-and- suffering jury awards at $250,000. The legislation would provide a sliding scale for lawyers’ fees.
Legislation that would require successful lawsuits against drug makers of bird flu vaccines to prove the higher standard of “willful misconduct” and not just negligence.
The Protection of Lawful Commerce in Arms Act, which provides gun makers immunity, in most cases, from lawsuits holding them responsible for gun violence. Mr. Bush signed the bill in October.
The Asbestos Trust Fund bill, sponsored by Sen. Orrin Hatch, R-Utah, would create a fund to reimburse those suffering from exposure to asbestos and halt litigation. Lawyers and organized labor oppose the move, saying the fund would not have enough money.
The Class Action Fairness Act of 2005, which was signed by Bush in February. It moves most class action suits to federal court. Its legislative sponsors say the bill was designed to prevent outrageous legal fees that sap awards for plaintiffs . Lawyers argue that federal court is costly and that most class actions involve state issues.
Fayard said his real concern is about fairness and the sanctity of the legal process.
Corporations, who often pay hourly legal fees, can afford such delays, but some plaintiffs and their lawyers, who work on a contingency-fee basis, cannot, he said.
“There are always two sides to an issue. If one side has an advantage by paying more fees up front on a regular basis and the other side cannot go out and hire competent counsel, then it sometimes dictates the result,” he said. “We are in an adversarial position. We shake hands, but some side is going to win and some side is going to lose.”
Tort reform, from a public relations standpoint, helped frame the 2004 presidential campaign. Though not as large an issue financially as others such as health care coverage, it came to symbolize for Democrats the battle of working class versus moneyed corporate executives. For Republicans, it became a canvass for painting trial lawyers and unions as greedy, causing insurance premiums and health care costs to rise.
Trial lawyers and union officials often cited the issue and came out for Kerry. Edwards, his running mate, portrayed his past legal work, which provided him with tens of millions in fees, as protecting the defenseless against corporate misdeeds.
Support for Kerry and for all Democratic federal candidates, in pure dollars, came in large measure from unions and lawyers/lobbyists. Unions represent a political sector lobbying for sweeping policy changes, such as universal health care programs and increases in the minimum wage. In his campaign, Kerry proposed increasing the wage by 36 percent from $5.15 to $7 an hour.
Under the Bush administration, the proposal has not moved, and Bush’s centerpiece economic legislation, the American Jobs Creation Act of 2004, has been criticized from the left as a pro-business tax giveaway, including a tax deduction for manufacturers and corporate tax breaks totaling $145 billion.
In the 2004 campaign cycle, labor gave $53.6 million or 87 percent of its federal contributions to Democrats, and about 13 percent to GOP candidates. Lawyers and lobbyists gave $135.2 million or 74 percent to Democrats and $45.8 million or 25 percent to Republicans at the federal level.
