Does Big Business Stack The Legal Deck?By
Corporate Lawyers and the Perversion of Justice in America
By Ralph Nader and Wesley J. Smith
Random House -- 427pp -- $25.95
In 1994, Bill Clinton was searching for a lawyer. His White House counsel, Bernard Nussbaum, had just resigned, a victim of the Whitewater investigation, and an irreproachable old Beltway hand was required to fill the slot. In short, Clinton said, he needed "a Lloyd Cutler type." In the end, Clinton got the man himself--on unusual terms that allowed Cutler to remain as senior counsel at his firm and to work for undisclosed private clients whose interests, he said, did not conflict with those of the government. Observed the Washington publication Legal Times: "Full-time White House counsel have never been able to conduct any outside work, but no one has raised questions about Cutler's arrangement--perhaps partly because of his stature."
How did Cutler rise to such esteem? According to No Contest: Corporate Lawyers and the Perversion of Justice in America, by consumer activists Ralph Nader and Wesley J. Smith, it wasn't by maintaining a spotless reputation. Rather, they say, in addition to serving as a lawyer-lobbyist for numerous companies and trade associations, Cutler had shamelessly capitalized on his social connections to win the praise of the powerful. Nor did it hurt that he had served as chairman of the Reagan-era commission on government salaries that recommended raises of at least 50% for the President, Cabinet members, Congress, and federal judges. "Was there a better way to become popular with the branches of government, each of which is crucial to your law firm's success?" ask Nader and Smith.
Cutler serves as No Contest's ultimate embodiment of the evil power lawyer. At the other end of the authors' scale is good lawyer Roger J. Balla. Introduced at the end of the book, Balla is a former in-house counsel to Gambro Inc., the U.S. subsidiary of a Swedish maker of kidney-dialysis machines. Gambro fired him in 1985, allegedly after Balla had tried to stop the sale of machines that the company knew to be defective. After suing for retaliatory discharge, the good lawyer was rewarded with a 1991 Illinois Supreme Court decision that said he had done the right thing--but upheld the company's right to fire him.
Such stark portrayals of good and evil are about what one would expect from activist and Green Party Presidential candidate Nader. But surprisingly, vituperative attacks are rare. Instead, for the most part, No Contest is a solid, readable expose of legal-system flaws. Legal experts will find few surprises, but the book provides useful lessons for all who want to make sense of the public distaste for American jurisprudence.
Most of today's lawyer-bashers assail money-grubbing plaintiffs' attorneys, whom they see as the instigators of crazy, costly lawsuits. But Nader and Smith argue that it's really corporate lawyers who should draw the flak, for they are the ones who have rigged the game against the little guy. Some of their charges are familiar: the use of prolonged discovery to exhaust and bankrupt less-well-heeled opponents, the routine destruction of in-house corporate documents, and the crushing pressures on lawyers to meet impossibly high hourly billing quotas. But by illustrating their points with cases involving tobacco, silicone breast implants, dangerous autos, and the like, the authors add a human dimension.
Perhaps the most interesting corporate legal tactic explored is the increasing use of secrecy--such as pretrial protective orders, confidential settlements, and so-called vacatures, which wipe out adverse judicial decisions when parties settle. (One such deal, a settlement between breast-implant victim Maria Stern and manufacturer Dow Corning, erased a $1.7 million trial verdict against the company in 1984.) These are the methods by which corporations keep pretrial discovery evidence under seal and disadvantageous precedents out of the law books. The authors assert that through the use of such methods, corporate wrongdoing has been diverted from the public eye--with huge consequences for the public's health and safety.
Somewhat predictably, the authors conclude their discussion of corporate ploys by attacking Congress' tort-reform efforts, which Nader's consumer advocates and their allies, the powerful trial lawyers, have regularly defeated. The book's tone grows more strident as the authors repeatedly refer to the legislative campaign as "tort deform." They write: "The evidence shows that the tort system works when used and that the tort `reforms' proposed by industry are nothing but efforts to reduce corporate accountability and jack up corporate profits."
Curiously, after examining "tort deform" efforts and many systemic problems, Nader and Smith propose a simple solution: the revival of professional ethical standards, individual by individual. To broaden perspectives, they advocate more pro bono work by both law students and big-firm lawyers. But the authors fail to challenge the role of judges and judicial procedures in stacking the deck in favor of corporations.
Still, No Contest adds balance to the debate, showing that the system's flaws result from the excesses of all sides. The practices of corporate attorneys indeed add to the corruption of American justice, although plaintiffs' lawyers must share some of the blame, too, for making litigation a national sport. But for the most part, the book explains the issues in a clear, no-frills manner--like a good issue of Consumer Reports.