ON MAY 19, 58 SENATORS voted against an amendment that would have paid trial lawyers $ 250 an hour, plus expenses, for all the work they've done against tobacco companies. If the lawyers had been working full time, that would have meant half a million per year -- or $ 2.5 million for each lawyer, for five years of work. In other words, righteous bucks.
So what was the problem with the $ 250-an-hour deal? The 58 senators didn't think it was enough. It turns out that the trial lawyers want $ 20 billion in taxpayers dollars, and these senators want to give it to them. When the amendment to set the fees at $ 250 was introduced by Sen. Lauch Faircloth, Republican of North Carolina, a visibly excited Sen. Richard Durbin, Democrat of Illinois, took to the floor, arguing that $ 250 an hour was more punishment than payment.
According to Durbin, a mere $ 250 an hour would be an insult to the lawyers. "Were it not for these attorneys, these tobacco companies would continue to make billions of dollars, would continue to exploit our children, would continue to be the number-one preventable cause of death in America month after month, year after year, decade after decade," the senator admonished.
True, there are some who see the trial lawyers as heroes for bringing down Big Tobacco. But others see them simply as lawyers out to make a buck, ones who might just as soon have worked for Big Tobacco, so long as they could have cashed their $ 20 billion ticket at the end of the day. Durbin wants us to think of the trial lawyers as both -- but that's not really possible.
If the trial lawyers are heroes, by all means let's treat them as such. Let's suppose for a moment they have bravely saved our children and therefore deserve to be held up right alongside Congressional Medal of Honor winners. Really big heroes. Do we normally give money to heroes? Aren't heroes the ones who refuse rewards, saying they acted (to save the children in this case) because they thought it was for the good of the country? Money only cheapens a hero's motivation and triumph. So, if the trial lawyers are heroes, they ought to be given full honors by Congress and the president. Maybe Dick Durbin could declare a "Trial Lawyer's Day." Americans would then take time out to contemplate just how much we owe to those who sacrificed so much that our children might breathe free. Congress could commission a Trial Lawyer's Memorial -- perhaps something like the Iwo Jima Memorial, though in this case the heroes could be plating a stake in the heart of a tobacco executive.
If, however, the trial lawyers are only lawyers, let's treat them that way -- as regular guys who schlepped to court against tobacco companies on the behalf of individual clients who hired them on contingency. And let's, just for the sake of argument, say that they were getting nowhere fast with juries until one day they got hired (again, for a percentage of the take) by the state of Florida. And then, their client, the state of Florida, passed a law (they can do that since they're the government) stripping the tobacco companies of their affirmative defenses in court, making it virtually impossible for the trial lawyers to lose. Now that's a good day at the office!
As for the tobacco companies, once they saw this brick loaded onto the scales of justice, they predictably started scrambling for a settlement. The payoff for the state government was huge, about $ 12 billion, and the trial lawyers were set to get almost $ 3 billion of that. When this tag-team effort was repeated in other states and then brought to Washington, D.C., the take for government was over $ 350 billion, and the trial lawyers were set to take in at least $ 20 billion for themselves. Cha-ching! What a ride.
Unfortunately for the trial lawyers, however, the big settlement was hijacked by politicians who wanted the money for themselves and their pet federal programs. So the state-based global settlement collapsed. Without the consent of all parties to the settlement -- as was achieved in Florida, Texas, and Mississippi -- or a victory in court, the trial lawyers have nothing coming to them. They can go back to court at the state level or they can ask Congress for relief, but they took their chances on a jackpot and lost out to an even greedier, cleverer bunch -- our elected officials in Washington. Viewed as mere mortals, the trial lawyers overreached, mishandled the end game, and lost.
So there we are. If the trial lawyers aren't heroes, but only lawyers, let's be fair -- even generous -- and pay them for their lawyering. It's a pretty lucrative profession. They'll do well. The typical lawyer in America earns about $ 150 an hour. The real hotshots (like the president's lawyers) get $ 400 an hour. Why not split the difference and go with Sen. Faircloth's $ 250? It makes sense -- unless, of course, you're in the hero camp, in which case let's press medals, carve statues, and put away all such vulgar talk of money.
William S. Armistead is a vice president of Citizens for a Sound Economy.