Not Much Dirt on Counselor Edwards
By Mike France
Just as Democrats have criticized Dick Cheney for his stewardship of Halliburton (HAL ), so Republicans have lashed out at John Edwards. A former trial lawyer, the Democratic Vice-Presidential candidate has been attacked for his career membership in a profession that's blamed for driving up medical costs, shaking down legitimate companies in court, and harming Corporate America's global competitiveness.
But as is the case with Cheney, the dirt on Edwards is far less impressive than the rhetoric (for a look at Cheney's record, see "What Cheney Did at Halliburton"). Just like CEOs -- there are both good and bad ones -- trial lawyers defy generalization. If you were to rate them on a scale from saintly to sleazy, Edwards would easily wind up on the better half of the spectrum.
The worst plaintiffs' attorneys are those who break the law or professional ethical codes by chasing ambulances, fabricating evidence, or incompetently representing their clients. These shenanigans -- which are more common than they should be -- get lawyers thrown into jail, disbarred, and sanctioned by judges. Edwards has a clean ethical record and has never been associated with this category (though his critics rightly point out it would be hard to know if he ever was, since state bar disciplinary proceedings are often conducted behind closed doors).
The next rung on the sleaze ladder are attorneys who, acting completely within the law, get major companies to make big payouts to plaintiffs by taking advantage of weaknesses in the civil-justice system. This can be done in a variety of ways. One is to manipulate class-action rules by filing a lawsuit that's light on merit but presents defendants with such massive potential liability that the plaintiffs often settle rather than endure an expensive and time-consuming trial.
Another is to jump on populist bandwagons and sue scandalized companies after regulators have already done all the preliminary legwork. A third is to drag big national companies into notoriously hostile "judicial hellholes" far from their headquarters, such as Southern Illinois and Eastern Texas, and vilify them in front of judges and jurors who are friendly to plaintiffs from the get-go.
Games such as these provide plenty of plaintiffs' attorneys with huge incomes -- and are the source of quite a bit of well-deserved anger in Corporate America and beyond. But Edwards doesn't deserve to be lumped in with these parasites. He was a very successful medical-malpractice attorney. Rather than filing class actions, his practice primarily involved representing individuals. Unlike the worst of the plaintiffs' bar, he had real clients, who had genuine injuries, and who appear to have been suing genuine wrongdoers.
Like many tort lawyers, Edwards was able to attract stronger and stronger cases as his stardom rose, because other lawyers with less courtroom talent started to hand over good leads in exchange for referral fees.
This isn't to say Edwards was above cheap theatrics, that the scientific evidence he presented at trial was entirely free of controversy, or that medical-malpractice attorneys are an unadulterated blessing for society. A legitimate controversy is raging in legal, political, and academic circles about the extent to which such lawsuits drive up America's health-care costs.
Some blame lawsuits for the rise in malpractice premiums, and others point to insurance-industry profiteering. Some say these suits force doctors to practice costly defensive medicine, and others say they force doctors to be more careful.
EVIL OR CHAMPION?
Resolving these issues is well beyond the scope of this particular election. The point is, the country is still far from a consensus on the pros and cons of medical-malpractice attorneys.
In the end, no evidence shows that Edwards is a sleazy example of the medical-malpractice species. To the contrary, he was probably one of the better ones. The main argument against Edwards is that he was a medical-malpractice attorney in the first place. People who think these types of lawyers are innately evil won't like him, while those who believe they're champions of the underdog probably will. And those who haven't reached a final conclusion about this debate won't find much in his résumé to sway them one way or the other.
France is Legal Affairs editor for BusinessWeek in New York
Edited by Beth Belton