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Saturday, December 30, 2006

Ought John Edwards' career as a plaintiffs' personal injury lawyer disqualify him from being elected President?

My blogospheric friend and fellow legal professional Stephen Bainbridge writes (much more concisely than I'm about to) about John Edwards' formal announcement of his candidacy for the 2008 Democratic presidential nomination (links in original):

Back in 2004, I wrote that Edwards policies on corporate governance were "demonstrably wrong." I also criticized Edwards' impact on the economy as a trial lawyer. Given the deleterious effects the trial lawyer industry has had on the American economy, as ably demonstrated by the Manhattan Institute's Trial Lawyers Inc. project, I remain unconvinced that a trial lawyer ought to have much authority over the economy.

I would be loath to gainsay Professor Bainbridge on anything involving corporate governance, and this essay only addresses the remaining points in his post. And we agree, certainly, that neither of us would ever be able to support Edwards for high political office. But I get to that conclusion via a different logical path, and I respectfully disagree, albeit only in part, with that followed by Prof. B.


I certainly agree with Prof. B that Edwards' specific career history as a lawyer is relevant to his fitness for public office. If he were shown to have been either incompetent or unethical as a lawyer, that would certainly be probative of his unfitness as a matter of personal character. But that would be true whether Edwards was a deal lawyer or a courtroom lawyer or any other kind of lawyer. (I argued in the 2004 election, for example, that John Kerry's comparatively dismal academic career and showing as a prosecutor before he turned to politics were among the many reasons to doubt his fitness for high office.)

And as always, I must voice my quibble over terminology: I believe what Prof. B objects to is not that Edwards is a lawyer who has frequently gone to trial (a category that includes, for example, prosecutors, criminal defense lawyers, personal injury defense lawyers, both sides in business litigation, and me), but rather, that Edwards is a lawyer who primarily represented plaintiffs in personal injury cases.

But that quibble aside, I also agree in general, at least on a macroscopic level and specifically at the margins, with most of Prof. B's and the Manhattan Institute's concerns about what the plaintiff's personal injury bar (many of whose members in fact do not frequently go to trial) may collectively have done, or be doing, or be likely to do, to our economy and our society. (I also think that it's dangerous and misleading to over-generalize on that topic. One of the reasons I like the writing of Walter Olson, Ted Frank, and their colleagues is that I believe they conscientiously try to avoid overgeneralizing, or at least to be very specific in their complaints — and they mostly succeed.)

I'm also at least somewhat inclined to think that because of the mode of most of our legal training, and for many of us the nature of our law practices, lawyers in general — not just plaintiffs' personal injury lawyers — may be more prone than those in other occupations to split hairs, play devil's advocate, rationalize, indulge in post hoc justifications, and fall prey to the perils of cultural relativity. All of which is to say, there are things about this profession that can often make it hard to maintain a principled, moral personal compass. Indeed, that may have proven true for some of the law school professors with whom Prof. B is familiar (although I'm confident that all of his own compasses are steadfast and true).


So there is much upon which I think we probably agree. Where I part company with Prof. B, however, is over whether Edwards' career as a lawyer who primarily represented plaintiffs in personal injury cases is, by itself, a factor that ought to cut against his being President.

It's perfectly possible, for example, for a lawyer to be polite, honest, and ethical; literate and well-educated; a fiscal conservative; a hawk on national defense and foreign policy; a libertarian on most issues involving personal liberty; a federalist; a textualist in statutory interpretation, an originalist in constitutional interpretation, and a proponent of judicial restraint; an opponent of both racism and racial preferences; a God-fearing Christian who nevertheless believes in evolution and the death penalty, but is horribly conflicted on the subject of abortion; and a lifelong Republican — and yet to have also represented plaintiffs in personal injury cases with some regularity. I know a few of those, and although plaintiffs' personal injury work has never been the bulk of my practice, I have from time to time been among that small but still significantly significant number. (That a huge portion of Angry Left Democratic candidates' funding comes from members of the plaintiffs' personal injury bar does not mean that all plaintiffs' personal injury lawyers support those candidates, no more than all members of the mainstream media do.)

And I'm not sure it's fair to use Edwards' membership in a subgroup of lawyers who may, in the aggregate, be bad for society or the economy, as a basis to extrapolate the kinds of national or international economic decisions he'd be likely to make as President. Lawyers who work on a contingent fee basis may indeed be keenly motivated by the prospect of sharing in their clients' recovery — again, that would describe me, from time to time, and it's the entire premise of the contingent fee system. But I don't think Edwards' decision-making as President would likely be motivated by personal greed for money, whatever his motivations have been during his career as a plaintiff's personal injury lawyer.


Instead, I think John Edwards would be likely to make presidential decisions less through principle of any sort than through constant focus-grouping and opinion polling. He would be a weather-vane President — always acting with an eye toward satisfying his Angry Left base, yet usually also trying to fool the moderates in order to thereby ensure his re-election. His greed would be not for money — he has plenty — but instead for power, and for the means for obtaining and retaining it.

I'm not sure there is a genuine center to John Edwards: I'm confident that he can certainly be a persuasive advocate, but I'm not at all sure that he's capable of being a strong-willed principal.

I believe, in other words, that if elected, Edward would likely be a lot like a former President, William Jefferson Clinton, or another Presidential wannabe, Hillary Rodham Clinton — neither of whom have ever been plaintiffs' personal injury lawyers, but both of whom are lawyers, or were until Bubba had to surrender his license. Indeed, both Clintons have been law professors. And they're both capable of debating what the meaning of "is" is, or of rationalizing methods by which small change has become a small fortune in futures trading.

Abe Lincoln was, by all accounts, a first-rate trial lawyer whose cases included representation of plaintiffs suing to recover for personal injuries, and who often worked on a contingent-fee basis. But that doesn't mean that he had much in common with John Edwards, or with Bill or Hillary Clinton, in terms of any of their fitness to be President.

Posted by Beldar at 06:11 AM in 2008 Election, Law (2006 & earlier), Politics (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Ought John Edwards' career as a plaintiffs' personal injury lawyer disqualify him from being elected President? and sent a trackback ping are listed here:


(1) jb made the following comment | Jan 1, 2007 8:29:44 PM | Permalink

Most of us civilians look at lawyers not as good or bad, beneficial or harmful, or even honest or dishonest when deciding whether they are that kind of lawyer. What we look at is how they balance the needs of their clients with the needs of society. Just because a case can be won and money can be made does not mean that the case should be pursued. I am an MD, and I freely admit that there is a lot of malpractice that goes on in our clinics and hospitals. Most of it does not attract the attention of the plaintiffs’ bar, and, what is worse, most of what does attract its attention is not malpractice in a medical sense, but bad outcomes that are nobody’s fault but associated with hurt feelings, pissed off relatives, and/or a wish to pick up some cash. In his capacity as a malpractice lawyer, Mr. Edwards did not give a damn whether malpractice occurred. All he cared about was whether he could convince a jury that it had occurred, and if that jury would be likely to return a 7 or 8 figure verdict. I don’t necessarily criticize him for it, but I do think it disqualifies him from any position of public trust. It is true that he needs no more money, but he does want power, and he will feel no reluctance to abuse our system of government to get that power. He will see satisfying his and his allies’ needs and desires as paramount and will not consider the long term welfare of the nation as his highest responsibility.

There is no question that the activities of malpractice lawyers has had a net negative affect on this nation’s health care system- the medical profession can not operate efficiently when another profession (the malpractice trial bar) serves as a parasite on it. Again, I don’t criticize Mr. Edwards for taking advantage of a system that he found ripe for plucking, but the fact that he thought that this was an efficient use of his considerable talent and intelligence does disqualify him in my view from a position where he will have the power to appoint judges and direct foreign policy.

(2) TC made the following comment | Jan 5, 2007 12:34:18 AM | Permalink

Name me an industry that A creates law, argues law before the various benches, then sits in ultimate judgment of said law?

And to think we actually thought it was bad for one guy to make all the steel.....

(3) wavemaker made the following comment | Jan 5, 2007 5:57:39 AM | Permalink

Greetings Beldar. First visit here, long overdue. I come from planet Overlawyered.

I agree entirely with your assessment of Edwards using a weathervane rather than a compass. But I don't think this necessarily has anything to do with his being a lawyer.

Unless one supposes that those with excessive hubris gravitate disproportionally to the profession.

I'm adding you to blogroll, if you don't mind.

(4) DRJ made the following comment | Jan 8, 2007 12:27:03 AM | Permalink


I am not a plaintiffs' personal injury lawyer, although I am a lawyer and I have handled personal injury cases as both plaintiff's and defense counsel. First, I agree with Beldar's post about John Edwards and lawyers in general. Sometimes these characteristics are strengths in politics and sometimes they are weaknesses. However, I think the average plaintiff's personal injury lawyer does have a higher level of self-confidence than the typical lawyer. It might even be justified in some cases, since these lawyers are often personable, good communicators, and savvy. In some ways, I think this is the good and the bad about lawyers like John Edwards. In politics, self-confidence and savvy can pave the way to great accomplishments but they can also lead to the grave mistakes of hubris.


I have a problem with this statement from your comment: "What we look at is how they balance the needs of their clients with the needs of society." That's not what lawyers are supposed to do, just as it's not what doctors are supposed to do. I'm sure you would be concerned if I objected to OBs who perform C-sections to deliver premature infants. What are they thinking, I might ask, bringing into the world expensive burdens like that? Or I might object when doctors experiment with new procedures on geriatric patients. No doubt you would object if I claimed doctors waste precious resources to prolong the lives of old people who have lived full lives.

In other words, JB, I'm not sure you understand the ethical and professional obligations that civil trial lawyers have, just as many laymen don't understand physicians' ethical concerns and constraints. I sympathize but "failing to act in society's best interests" isn't the standard for the legal profession any more than it is for the medical profession. With the exception of prosecutors, a lawyer's obligation is to serve the client's interest, not society's, just as doctors are obligated to do their utmost for their patients.

Having said all that, I agree the malpractice area is a mess. I wish I knew the answer, but I honestly believe that the medical malpractice situation can be blamed on both the medical and legal professions. Clearly, part of the blame lies with lawyers who play on jurors' sympathies to blame the doctor; but there is also blame for those doctors and other health care professionals who failed to police their own profession and for decades routinely covered up medical mistakes or enabled questionable physicians to continue practicing.

I'm not trying to throw stones at doctors. In past times, some lawyers did the same thing and now plaintiffs' lawyers are suing lawyers for malpractice, too. Perhaps that's some small consolation for American doctors.

(5) ech made the following comment | Jan 8, 2007 11:00:04 AM | Permalink

but there is also blame for those doctors and other health care professionals who failed to police their own profession and for decades routinely covered up medical mistakes or enabled questionable physicians to continue practicing.

Um. The fact is that the bar has prevented the medical profession from self-policing. If an MD makes any kind of uncompelled statement to any regulatory agency, hospital, or other physician that results in a disciplinary action against a fellow physician, they will be sued for "restraint of trade" quicker than you can imagine. It has happened to friends and a family member. The only groups that can effectively do anything to discipline a doctor are the state licensing boards. It used to be that the state and local medical societies had some power (they could expel you, causing you to be expelled from hospital staffs), but they lost that in the early 70s.

When my wife was forced to be on the credentialing panel at a hospital she worked at, I made damn sure that the hospital indemnified her for lawsuits arising out of her service. I find it interesting that the bar in many states have few or no laypersons that sit on the licensing and discipline boards, yet the medical boards are laypersons and physicians. (From what I can tell, the final appeals in Texas bar discipline cases are heard by a panel of bar members.)

(6) DRJ made the following comment | Jan 8, 2007 1:57:15 PM | Permalink

No one prevents doctors or any health care professional from reporting malpractice to the appropriate entity or authority. Is it your contention that doctors don't report malpractice because it might cause them problems? If so, you prove my point.

As for laymen on bar regulatory committees, I'm not sure why you think it's particularly relevant but the State Bar of Texas grievance committee members are 1/3 laymen and 2/3 attorneys:

"Usually, there are three to six members on the investigatory panel, one-third of whom are laymen and two-thirds of whom are attorneys."


(7) ech made the following comment | Jan 9, 2007 11:20:22 AM | Permalink

Is it your contention that doctors don't report malpractice because it might cause them problems?

Yep. Very, very expensive legal problems. In effect, you get hit with a SLAPP suit that can cost tens of thousands of dollars to defend, plus lost time away from work - costing even more. The idea that reporting a fellow physician for bad work is "restraint of trade" is the kind of thing that gives the other 5% of attorneys a bad name. :-)

Usually, there are three to six members on the investigatory panel, one-third of whom are laymen and two-thirds of whom are attorneys.

Yeah, and the final appeals are heard by a panel of attorneys. Not so for physicians.

Look - the AMA and some congresscritters have proposed a way out of the malpractice problem: (1) adopt the worker's comp model of compensation and (2) have mandatory quality assurance reviews of cases with adverse outcomes to improve the practice of medicine. (1) has been used in Europe with great success. (2) has been done by the anesthesia speciality and their malpractice insurers and has resulted in vastly better outcomes for patients and the weeding out of bad physicians. Alas, it will never happen since it cuts the percentage of mapractice premiums that go to the bar. (Estimated at 70% or more, btw.) Obama and Clinton are said to be proposing it. Even a blind squirrel finds an acorn from time to time.

(8) DRJ made the following comment | Jan 9, 2007 12:06:38 PM | Permalink


Is it your impression that most doctors advocate the European model of health care? If so, is this because it streamlines the compensation process or are there other reasons for that support?

(9) DRJ made the following comment | Jan 9, 2007 12:11:44 PM | Permalink

BTW, as for mandatory review of adverse outcomes, I understood that the medical profession regularly conducts such reviews in Morbidity and Mortality conferences. Am I misinformed?

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