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And trial lawyers thought things couldn’t get any worse. At the close of 2006, you may recall, plaintiffs lawyers were in full retreat, routed by the combined might of corporate tort reformers and conservative politicians. The American Lawyer officially declared the era of mass torts over, featuring a dead goose on its December cover. The defeat was so total that, the same month, the Association of Trial Lawyers of America, the trial bar’s most venerated and respected organization, had to change its name to the American Association for Justice. That’s like the U.S. Chamber of Commerce renaming itself the Alliance for Goodness. But at least, the trial bar must have thought, things couldn’t get any worse in 2007. Then the criminal indictments started. By year-end, Mississippi’s Richard “Dickie” Scruggs, New York’s Melvyn Weiss, and California’s William Lerach � three titans of the trial bar � were all facing felony conspiracy charges in federal court. Their legal peril has spurred tough questions about the state of the trial bar. Of course, one lawyer’s misfortune is often another’s cause for celebration. Darren McKinney, communications director of the American Tort Reform Association, says gathering support for his group is easier “when you put a Lerach’s head on a pike and when you potentially put a Scruggs’ head on a pike.” For Weiss and Lerach, the legal nightmares began in 2000, when federal prosecutors began an investigation into whether their New York-based firm, Milberg Weiss, paid illegal kickbacks to clients willing to act as lead plaintiffs in securities class actions. The firm and name partner Weiss were indicted � the firm in 2006 and Weiss this past September � in federal court in Los Angeles on felony conspiracy charges. Lerach, who has resigned from his most recent firm, Coughlin Stoia Geller Rudman & Robbins, pleaded guilty in September and awaits sentencing in January. Weiss and his firm, however, maintain their innocence. Weiss’ attorney, Benjamin Brafman of Brafman & Associates, says his client “is absolutely determined” to fight the charges. Milberg Weiss’ attorney, Zuckerman Spaeder partner William Taylor III, did not return a call for comment. In November, Scruggs of the Scruggs Law Firm, was indicted in federal court in Oxford, Miss., for conspiring to bribe state court Judge Henry Lackey to make a favorable ruling in a civil case concerning the distribution of $26.5 million in legal fees. Prosecutors say that another Mississippi lawyer, Timothy Balducci, approached the judge with the money, but that Scruggs reimbursed Balducci for the $40,000 bribe. Scruggs has pleaded not guilty. One of his lawyers, William Quin II of the Langston Law Firm, says the Jan. 22 trial date will likely be moved back to extend time for discovery. Scruggs’ other attorney, Keker & Van Nest partner John Keker, who is also Lerach’s counsel, did not return a call for comment. Russ Herman, a name partner with Herman, Herman, Katz & Cotlar in New Orleans and one of the plaintiffs lawyers who negotiated the recent $4.9 billion settlement with Merck & Co. over its painkiller Vioxx, personally knows all three indicted lawyers. He says that if the charges against them are accurate, “they’ve done severe violence to the system.” Lisa Rickard, president of the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce, says the trouble amounts to more than a few bad seeds. “This is not just about Lerach, or Milberg Weiss, or a Scruggs indictment. It’s a culture that’s pervasive among the trial bar.” Still, the tort reform lobby is aware that, even if it does get to mount some heads on its wall, the broader political climate may not be very favorable in the foreseeable future. The last major tort reform Congress passed was the Class Action Fairness Act of 2005, just after President George W. Bush re-entered the White House for his second term. “There’s not going to be a Class Action Fairness Act or a Lawsuit Abuse Reduction Act passed anytime soon….We’re in defensive mode,” says McKinney. As for a federal medical-malpractice cap � something that Republican presidential hopeful Mitt Romney has touted on the campaign trail � he adds, “We’re not so wild-eyed to think anything like that is going to happen in this 110th Congress.” Of course, since 2000, his group has already helped win such caps in West Virginia and Texas. He adds that roughly seven or eight states have passed other types of medical liability reform in recent years. While tort reformers may find life on the Hill tough sledding, they have exercised clout with the rulemaking authority of federal agencies. For example, Big Pharma successfully lobbied the Food and Drug Administration for a 2006 rule on drug labeling that often pre-empts personal-injury claims brought under state law, giving pharmaceutical companies a new line of defense. Rulemaking, says Kathleen Peterson, president of the American Association for Justice, “is a way of stealth tort reform under the radar.” Nonetheless, she adds, “I believe that there’s always going to be a role for attorneys who are going to stand on the side of individuals.” Russ Herman echoes that sentiment, a pervasive one among trial lawyers. He notes that post-Hurricane Katrina insurance claims alone have given him enough business for the next 10 to 15 years: “There will always be a place for us as long as there’s greed. Greed and arrogance feed on American consumers.”
Marisa McQuilken can be contacted at [email protected].

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