New Orleans trial lawyer Calvin Fayard has watched his city rebuild these past four months, but he sees another dangerous tide rising, one that threatens his legal profession.
This threat is more subtle - the Bush Administration's encroachment on the rights of plaintiffs and lawyers to file environmental lawsuits against companies working to clean up hurricane-damaged areas along the Gulf Coast and in New Orleans. Fear of a completely different tragedy has prompted the GOP-controlled Congress to consider offering the same lawsuit shield to drug makers working on bird flu vaccine in anticipation of a widespread flu outbreak.
The Bush battle against trial lawyers is part of the reason why Mr. Fayard spent time raising money for John Kerry and was listed as a Vice Chair by the campaign for raising at least $50,000 for the Massachusetts senator's 2004 presidential bid. It wasn't enough for victory, and now Mr. Fayard, labor unions, and other Democrats 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," Mr. Fayard said of his fund-raising. "I thought John Kerry was the best man for the job."
For trial lawyers, laws enacted in these past five 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 Mr. 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. Mr. Kerry's running mate, former U.S. Sen. John Edwards, is a millionaire contingency-fee trial lawyer by trade.
The number contrasts to the 32 lawyers, or 6 percent, on Mr. Bush's list of 548 Pioneers and Rangers, those who raised at least $100,000 or $200,000, respectively, for his re-election campaign.
The American Tort Reform Association supports measures that would cap jury awards. The association argues 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 be Mr. Kerry's running mate.
"They would have passed a pro-litigation, anti-business agenda," Ms. Schaefer said of a successful Edwards ticket.
Over five years in the White House, President Bush has championed measures that would shield certain corporations from lawsuits. They include:
- The HEALTH Act of 2003, (which stands for Help Efficient, Accessible, Low Cost, Timely Health care). It passed the 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 lawyer's 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 immunity in most cases for gun makers from lawsuits holding them responsible for gun violence. President Bush signed the bill in October.
- The Asbestos Trust Fund bill, sponsored by U.S. Sen. Orrin Hatch (R., Utah), would establish 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. "Justice is distorted, and our economy is held back by irresponsible class-actions and frivolous asbestos claims - and I urge Congress to pass legal reforms this year," the President said in his Feb. 2 State of Union address.
- The Class Action Fairness Act of 2005, which was signed by President Bush in February. It moves most class-action suits to federal court. It's 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.
Mr. Fayard said trials at the federal level are more costly and time-consuming. Trial lawyers are losing money, but Mr. Fayard claimed it's about fairness and the sanctity of the legal process.
Corporations, which often pay hourly legal fees, can afford such delays; some plaintiff's 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 battle
Tort reform, from a public relations standpoint, helped frame the 2004 presidential campaigns. Though not as large an issue financially as others, such as the debate over health-care coverage, it came to symbolize for Democrats the battle of working class versus corporate executives. For Republicans, it became a canvas 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 Mr. Kerry. Mr. Edwards portrayed his past legal work, which reaped him tens of millions in fees, as protecting the defenseless against corporate misdeeds.
Kerry support and support 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 instituting universal health-care programs and increasing the minimum wage. In his campaign, Mr. 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 Mr. 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 the 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.
Hollywood under attack
The trial lawyers are not alone in feeling put upon by a Bush victory. Some industries, such as entertainment, feared censorship from the right. They are traditionally at odds with the GOP, though not always, over violence in films. Rob Friedman, vice chairman of Viacom-owned Paramount Pictures, raised enough money to be on Mr. Kerry's list of top fund-raisers. A slew of actors raised money for Mr. Kerry.
Under President Bush's tenure, CBS Entertainment, owned by Viacom, came under fire for Janet Jackson's so-called "wardrobe malfunction" that exposed her right breast at the 2004 Super Bowl halftime show. The Federal Communications Commission leveled a record $550,000 fine.
Under Mr. Bush, Paramount and other movie companies were facing increased taxes because of the President's American Jobs Creation Act of 2004.
U.S. Sen. Dianne Feinstein (D., Calif.) objected to a part of the draft bill that would have forced Hollywood to change to a "unified accounting system," adding a $5 billion tax burden over 10 years. The bill, originally meant to bring U.S. international tax law in line with World Trade Organization rules, was criticized by Democrats as a bevy of corporate tax breaks. It gives NASCAR track owners tax breaks for improvements and temporarily suspends tariffs for Home Depot on imported Chinese ceiling fans, among other initiatives.
"This is especially egregious given the fact ... the film industry was not even involved in the unfair trade practices that led the WTO to declare that U.S. international tax rules were unfair," she wrote in a letter to President Bush. The bill was amended.
Media giants hedge bets
Hollywood usually offers Democrats support. But larger media, outside of film, often are cagier about support.
More high-powered media executives than usual came out in support of the Democratic presidential candidate last year, perhaps to reduce Howard Dean's chances, industry and political analysts said. Mr. Dean, who is now chairman of the Democratic National Committee, said he might try to break up major media conglomerates.
Media executives, including brass from Time Warner and Viacom, were Kerry Chairs and Vice Chairs. Former Time Warner Vice Chairman Ken Novack and DreamWorks' Jeffrey Katzenberg and his wife, Marilyn, were on Mr. Kerry's list of top campaign bundlers.
Entertainment heavyweights on the list included Jonathan Dolgen, the now-former chairman of Viacom Entertainment Group, Nancy Tellem, president of CBS Entertainment, and James Gianopulis and Tom Rothman, co-chairmen of Fox Filmed Entertainment.
Sumner Redstone, the head of Viacom, gave money early to Mr. Kerry's campaign. But he caused controversy when he endorsed the President.
"I look at the election from what's good for Viacom. I vote for what's good for Viacom. I vote, today, Viacom," he was reported as saying in Beijing at a CEO conference.
Making the best of things
In New Orleans, Mr. Fayard has been professionally untouched, he said. His work focuses on railroad companies. But a couple of days after the hurricane, he met New Orleans evacuees in Baton Rouge. He learned of their insurance plight.
The lawyer and several colleagues, free of charge, asked a court to rule "that the high water in Orleans and Jefferson Parish, which flooded thousands of homes, is caused by man-made neglect and wind damage rather than a so-called 'Act of God.'"
With such a definition, insurance companies would have to pay claims. The case is pending. The New Orleans flooding resulted from errors in engineering and federal policy, he said.
"That was a man-made flood."
Staff writer Joshua Boak contributed to this report.
- 175 Corporate Influence on the Elections