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What the 2020 election means for personal injury lawyers

by Victor Schwartz

What do personal injury lawyers want out of the 2020 election? Voters and the media should be asking questions about this crucial, powerful group's agenda in the next Congress if the Senate changes hands. But most people are unlikely to ask because do not even realize how powerful the organized trial bar is behind the scenes.

For decades, trial lawyers have been a major funding source for Democrats running for office. The trial bar also covers its bases by supporting a few powerful Republican senators whose election is considered relatively "safe." The trial bar's goal these many years has been to find ways to enhance or at least preserve its avenues of litigation throughout the United States. Next year may just be a watershed year for a return on those investments.

If the Democrats take full control of Congress, and put an end to the filibuster, the trial lawyer agenda will become a top priority in the 117th Congress. This is why it is important to recognize what this agenda entails and why public light on it is so important.

First, the trial lawyers have long beseeched Congress to prohibit the use of pre-dispute arbitration agreements, even though such agreements provide many consumers with a much faster and less costly and time-consuming way to resolve disputes and obtain a recoveries. The reason for their proposed ban on this alternative dispute resolution method? Lawyer fees. Simply put, lawyers make less money when claims are more efficiently resolved through arbitration. A complete bar on such agreements would open the floodgates for high contingency fees and lucrative litigation.

Trial lawyers have already made some headway here with the ironically named "FAIR" Act, which passed the House last year. It would broadly nullify pre-dispute arbitration agreements in consumers' contracts. Yet with many courts now closed because of the COVID-19 pandemic, arbitration may be consumers' only path to achieve justice if a consumer is dissatisfied with a service or product. The U.S. Supreme Court has ruled numerous times (under a law called the Federal Arbitration Act) that such agreements can be enforced. But, if the trial lawyers are successful in the upcoming election, they stand to make billions of dollars with new litigation in already overburdened courts.

Another longstanding trial bar initiative has been to obtain changes to the tax rules that can help facilitate more litigation, with taxpayers effectively footing the bill. Currently, if a trial lawyer pays litigation costs, such as hiring experts to testify in a trial, those amounts cannot be deducted as an expense until it becomes known whether the lawyer will have to pay it. That typically occurs when the case is resolved by an awarded judgment or settlement. If the lawyer wins, the expense is wiped out. If the lawyer loses, he or she can then deduct the expense.

If the trial lawyers get their way in a Democratic Senate, the law will change to enable trial lawyers to take a tax deduction the moment they make a payment, even if that occurs long before litigation begins. So, who "floats" the litigation during that time? The taxpayers, of course.

Another trial lawyer priority pertains to liability law. The current understanding is that no one should be liable for making a lawful product that someone else misuses to harm another person.

This principle applies especially to the manufacture of guns, particularly where a criminal uses a gun to kill or injure a person.  In 2005, Congress, in a bipartisan effort, enacted the Protection of Lawful Commerce in Arms Act (PLCAA) to ensure that activist courts could not distort liability law fundamentals to impose massive liability against gun manufacturers merely for making product that is capable of harming others.

Repeal of the PLCAA is high on the trial lawyers' post-election agenda. They want to open the door to lawsuits against gun manufacturers and create new precedents that twist and expand liability law rules that can then be used to target other unpopular industries. Some influential members of the trial bar want to go even further and create a broad federal cause of action that would allow anyone injured by a gun to successfully sue the manufacturer.

What can be done to stop trial lawyers from running roughshod in the next Congress? A modest first step is for the media to start shedding light on the trial bar's numerous proposals to broadly increase litigation throughout the country.

Victor E. Schwartz is a former law school dean who has taught and practiced tort law for more than 50 years, representing both plaintiffs and defendants at different times in his career.



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