Now that John Kerry has announced that John Edwards will be his running mate in the United States presidential election, the Republicans are spouting the term "trial lawyer" so often that using it as a buzzword for a drinking game will cause liver damage. Who are these guys and why do the Republicans hate them so much?
Why are plaintiffs' lawyers called "trial lawyers"?
By "trial lawyers", the Republicans mean claimants' lawyers—that is, plaintiffs' lawyers—the lawyers who represent injured persons in lawsuits against industrial firms and insurance corporations. Why, you may be wondering, are plaintiff's lawyers called "the trial lawyers"? Aren't the corporate defense lawyers also "trial lawyers"? Technically, yes, but the term now refers to plaintiff's lawyers. The plaintiff's personal injury bar dubbed itself "trial lawyers" in 1972 and the term stuck.
The term comes from the name of largest organization of claimant's lawyers: the Association of Trial Lawyers of America (ATLA). ATLA is a relatively new group, and the term "trial lawyers" is even newer. It was orginally founded (1946) as an association of workers compensation lawyers, known as the National Association of Claimant's Compensation Attorneys (NACCA). By contrast, the American Bar Association was founded in 1878, the American Civil Liberties Union (ACLU) was founded in 1920, and the National Lawyers Guild was created in 1937.
Unlike ACLU or the National Lawyers Guild, NACCA originally did not have a political agenda: it was just a trade organization. The adversarial nature of compensation litigation, however, and the need to combat the unceasing and well-funded lobbying efforts of the organization's opponents—industrial corporations and insurance companies—soon forced the organization into a progressive/leftist political orientation.
The core group of lawyers representing industrial accident victims expanded to include lawyers working in a variety of personal injury cases, as well as other types of claims. In 1972, the organization changed its name to the "Association of Trial Lawyers of America" to encompass the fact that its membership now represented claimants with a variety of different types of claims: from worker's claims through all kinds of personal injury to civil rights, employment, and government benefits claims. The common thread is that "trial lawyers" represent claimants: "plaintiffs" in legal terminology, not "defendants".
Defense lawyers have a "Defense Lawyers Association", but the DLA does not have the same kind of mission. Defense lawyers do not need to lobby for their clients: big corporations and insurance companies can afford their own lobbyists. Accident victims, as such, have no one to represent them but the trial lawyers. ATLA lobbies to preserve the legal systems which provide compensation to injury victims, and also disseminates information about hazardous products and practices. To quote the promotional blurb which appears on its website and in various publications, ATLA:
promotes justice and fairness for injured persons, safeguards victims' rights —particularly the right to trial by jury— and strengthens the civil justice system through education and disclosure of information critical to public health and safety.
That's not exactly the Communist Manifesto, but you'd think so, listening to Republicans. Since the trial lawyers are overwhelming liberal and put a lot of money into the Democratic Party and specific Democratic candidates, however, the Republicans attack them. The watershed for this sort of thing was Dan Quayle's 1991 campaign against the trial lawyers and in favor of something called "tort reform", which is the Republican buzzword for laws that allow insurance companies to keep your premiums and enhance their profits by not paying claims.
What trial lawyers are really like.
Trial lawyers are a very special breed. While some practice in large firms, they tend to practice in much smaller groups or as solo practitioners. The defense lawyers are generally paid by the hour, which in turn lends itself to the creation of large law firms with a corporate, assembly-line type of organization. Defense lawyers are largely interchangeable cogs in a machine.
Trial lawyers, by contrast, are entreprenuers. An accident victim comes to them, typically with no money and a pile of bills. The trial lawyer agrees to represent the victim on a contingent fee basis: no recovery, no payment. The trial lawyer assembles resources and hires an expensive army of assistants—more lawyers, paralegals, investigators, experts—to prepare and if necessary present a case to a jury at trial. All of this comes out of the trial lawyer's pockets: the victim can't pay for it, and no insurance company or corporation is footing the bill. Every case is a huge risk, and few cases bring substantial rewards.
Putting on a trial is like making a movie. Contrary to any impression you might get from television, as a spectator or member of the jury, nothing in a trial is a surprise. Everything is completely scripted in advance. The trial lawyer is often the director, producer and leading actor in the show, but the more successful trial lawyers have a supporting cast of dozens of people. The way trials are financed is also a lot like Hollywood: a lot of money is spent up front without any guaranty your trial will be a "box office" success.
The movie Erin Brockovich gives you an idea of what the supporting cast does (and also, I think, accurately portrays what your typical trial lawyer's office is like when they haven't got lucky with a big case: a sleazy low-rent operation which has difficulty paying the bills). Another movie which I think shows what it is really like is Class Action, a 1991 film starring Gene Hackman. In that movie Gene Hackman gives a dead-on portait of all the trial lawyers I have ever known (egotistical overachievers, but their hearts are in the right place) and the chillingly creepy defense lawyers, defending the indefensible with apparently no moral qualms and no ethical limitations.