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July|August 2003
Alimentary School By Joel Topcik
A Seat At The Table By Michael S. Gerber
Tour's Over By Damien Cave

A Seat At The Table

By Michael S. Gerber

THE CROWD OF CONGRESSIONAL AIDES, LOBBYISTS, AND REPORTERS packed inside a Senate hearing room on a recent Wednesday afternoon could see that Senator Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, had Dennis Archer on the defensive. Archer, the Democratic former mayor of Detroit and the president-elect of the American Bar Association, was before the committee to explain a recent vote by the ABA House of Delegates, the 539-member body that determines bar policy. The delegates had endorsed a set of medical criteria that plaintiffs suing corporations for asbestos exposure would have to meet in order to get their cases heard in court. An Archer-appointed commission had drafted the policy last year and it had been approved in February by 70 percent of the delegates voting at the ABA winter meeting. But Leahy wasn't satisfied.

"Some concerns have been raised, and I'm sure you've heard them, that the composition of the ABA commission may have biased its recommendations," the veteran senator said, referring to criticisms that the members of the commission did not include a labor attorney or one who represents people with symptoms that wouldn't meet the proposed criteria. He leaned forward, crossing his arms and resting his elbows on the table. "Should the ABA commission have been broader in its representation?" he asked.

"With all due respect, no," Archer said, wielding the combination of deference and confidence that characterized his testimony throughout the hearing. "The employment and labor section was given every opportunity to be heard."

"That's a little bit different than being part of the commission," Leahy retorted. He compared the ABA commission to the Senate committee conducting the hearing. Though a bill approved by the committee could subsequently be amended by the full Senate, "it still gets written primarily here."

The ABA policy was "primarily written by a commission that I believe was quite fair," Archer replied. But he saw that he had lost the argument, at least for the moment.

Since asbestos-related litigation became a profitable business for lawyers over 20 years ago, it has driven more than 50 American corporations into bankruptcy. About 600,000 asbestos lawsuits have been filed; some predict that total will eventually quadruple. The pending suits list more than 6,000 companies as defendants. On more than one occasion, the Supreme Court has suggested that this "elephantine mass" required a legislative solution. Members of Congress on both sides of the aisle have said they would like such legislation to be enacted this year. In May, businesses, insurers, unions, and lawyers appeared to be approaching an agreement, though the final version may be months away.

The establishment of a trust fund for victims of asbestos exposure has emerged as the most likely solution, in large part because the business groups that originally opposed the idea became more willing to consider it when judiciary committee leaders suggested that it was the best approach. The trust fund would take all asbestos claims out of the courtroom. Support from business groups as well as organized labor made the trust fund concept an appealing compromise, but there remain many details to hammer out: Businesses want to keep the fund small, while labor would like to ensure the fund has ample resources to pay all victims for the foreseeable future. Settling on a set of criteria to determine when and how much individual claimants get paid has also presented a challenge for negotiators.

It's not surprising that conflicting business interests have struggled to find a compromise. What is surprising is the schism that asbestos litigation reform created in the legal community. The ABA did not back a trust fund; its proposal would have allowed claimants to sue companies, but only if they met strict medical criteria—those who didn't qualify as "sick" wouldn't have been able to sue. The Association of Trial Lawyers of America, by contrast, opposed "any legislation that seeks to deny victim access to the courts or compensation." ATLA backed the idea of a trust fund, which would help ensure that claims against bankrupt companies could be covered, but threatened to reject any law that excluded anyone based on strict medical standards.

Traditionally, the ABA and ATLA have agreed on policy issues. The trial lawyers rival major unions as the Democratic Party's most reliable contributors. The bar association, while not as active politically—it doesn't endorse candidates or have a political action committee—has taken positions on gun control, affirmative action, and other issues that could have come right out of the Democratic platform (or so conservatives charge). As the plaintiffs' bar vigorously fights a series of Republican-sponsored tort reforms, ranging from limits on medical malpractice awards to product liability restrictions, the ABA has supported its fellow lawyers. "Generally we are in agreement and work together," said an ATLA spokesman, Carlton Carl. He added that the two groups have disagreed "from time to time," but he couldn't name an issue other than asbestos where they have differed.

While a few lawyers whose clients suffer from malignant cancer caused by asbestos lobbied for the ABA's plan, arguing that the inordinate number of cases brought by healthy plaintiffs has prevented their clients from getting their day in court, several prominent trial and labor lawyers attacked Archer and the ABA for their proposal. Some politically active trial lawyers have made millions of dollars representing claimants with less severe ailments, or, according to some defendants, people who were not sick at all. Fred Baron, a former ATLA president and generous contributor to Democratic candidates, is one of those lawyers. "They started studying the issue in December and had a result in only a few weeks," Baron said. "This was a shocker."

Other critics, including top Democratic aides in the Senate, accused Archer of using his leadership position at the ABA to promote his own agenda. W.R. Grace, a chemical manufacturer and defendant in an asbestos suit, was a client of Archer's law firm, Dickinson Wright, where Archer has been chairman since leaving Detroit City Hall in 2001 after two terms as a popular mayor. Archer cites the 70 percent majority in the House of Delegates as proof that he did not push the policy through unilaterally, but Baron believes the endorsement by the Archer-appointed commission and by Archer himself was enough to convince many of the voters. "Dennis Archer lobbied the heck out of this thing," Baron said.

Archer denies having unduly influenced the outcome of the ABA vote and is quick to point out to senators and reporters that opponents of the measure spoke out against the policy on the floor of the House of Delegates and were given a serious hearing before the vote. But Archer defends the policy as well as the process that created it. His defense is less a matter of principle than one of political strategy.

BY ENDORSING A CONSENSUS-SEEKING POLICY, the ABA gave itself a voice in the debate. The last time the Senate Judiciary Committee had held an asbestos litigation hearing, the ABA had to watch from the sidelines as Baron, not Archer, answered questions. Archer said that he was willing to negotiate—"If there needs to be some tweaking, we're willing to work with whomever to accommodate [it]," he said—but he still wanted to be part of the decision-making process.

The ABA's decision was a public-relations win for supporters of asbestos lawsuit restrictions who hoped to take advantage of the organization's nationwide reputation as a nonpartisan professional society. The significance of the endorsement from the ABA became clear during the Senate hearing, when witnesses and senators from all sides of the debate referred to the "ABA proposal," even though several business groups have endorsed similar plans. When Senator Don Nickles, a dyed-in-the-wool Republican from Oklahoma, introduced a bill using the ABA standards in February, the bill's summary neglected to mention the National Association of Manufacturers, the U.S. Chamber of Commerce, or any of the hundreds of businesses lobbying for legislation.

Yet the ABA never replaced the trial lawyers as the voice of attorneys in the negotiations; it merely joined them. Archer was invited to a summit attended by several senators and dozens of lobbyists in April, but so was Baron. And one of the appealing aspects of the trust fund for lawmakers and lobbyists was that the trial lawyers had not vocally opposed the plan, showing that ATLA's political power still weighed heavily on the minds of Senate and private sector negotiators.

Lawyers on both sides of the debate say they think the rift between the ABA and ATLA will only be temporary, but there is a growing belief that the asbestos decision could foreshadow an ABA that is less hostile toward other tort reform measures.

"I believe it's a historic shift within the bar association," said Jack McMackin, an advocate for tort reform. "I think what's happened is that even the mainstream bar association is understanding that the plaintiffs' bar, or some of it, particularly the mass tort lawyers, have gone too far—and that it is hurting all lawyers." McMackin was so encouraged by the ABA's action that he is considering rejoining the organization, which he quit "in protest" several years ago over what he saw as its increasingly liberal policies.

And while Leahy may have made Archer squirm during his appearance before the judiciary committee, Chairman Orrin Hatch made a point of thanking Archer for making asbestos a priority and for setting up the asbestos commission. "I've been very impressed with Mr. Archer—always have been, before you got here today—but especially today. I think the ABA is very fortunate to have you as their upcoming president," Hatch said. "Isn't it wonderful that Republicans are finding all kinds of good in the ABA and the Democrats are finding all kinds of rotten things about you? I tell you, it's just wonderful." The chairman's comments drew quiet laughter from the gallery, but not the roar they might have elicited had his statements lacked a grain of truth.

Michael S. Gerber is a staff writer at The Hill.

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