David v Goliath: ATLA and the Fight for Everyday Justice A FIFTY-YEAR HISTORY OF THE CHALLENGES AND ACCOMPLISHMENTS OF THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA BY RICHARD S. JACOBSON AND JEFFREY R. WHITE Richard S. Jacobson Jeffrey R. White David v. Goliath: ATLA and the Fight for Everyday Justice ATLA David v. Goliath: ATLA and the Fight for Everyday Justice. Copyright © 2004 by Richard S. Jacobson and Jeffrey R. White. All rights reserved. Printed in the United States of America. No part of this book may be used or reproduced in any manner whatsoever without written permission ex- cept in the case of brief quotations embodied in critical articles and reviews. For information ad- dress the Association of Trial Lawyers of America, The Leonard M. Ring Law Center, 1050 31st St., NW, Washington, DC 20007-4499; 202-965-3500. Designed by Jennifer L. Accongio Printed by United Book Press, Inc., Baltimore, MD ISBN 0-615-12518-2 To The memory of my loving wife, Elaine Osborne Jacobson, our daughter, Joyce Elaine Barrett-Cox, and our granddaughter, Stephanie Elaine Barrett And To Jeanne Marie White and Molly, Leslie, and Patrick White Contents Introduction / vii Chapter 1: Humble Beginnings / 1 Chapter 2: Defenders of the Jury / 23 Chapter 3: Trials and Tribulations / 49 Chapter 4: A University Without Walls / 71 Chapter 5: A Bill of Rights for a Safer Society / 95 Chapter 6: Tort Crusaders / 133 Chapter 7: Respect and Revolution / 163 Chapter 8: No Fault / 185 Chapter 9: Reluctant Warriors / 203 Chapter 10: The Jury Under Siege / 223 Chapter 11: Advertising, Ethics and Image / 245 Chapter 12: Tort Wars II / 261 Chapter 13: Tort Reform On Capitol Hill / 285 Chapter 14: Friends Of The Court / 305 Afterword / 323 ATLA Officers / 327 ATLA Hall of Fame / 333 Index / 335 Introduction Bill Wagner, Past President,ATLA Richard Jacobson and Jeffrey White have condensed volumes of historical ma- terials and oral interviews into a fascinating story of the birth and develop- ment of the Association of Trial Lawyers of America. In many ways it is also the story of the “personal injury practice.”It is more, however. It is a valuable source book for those lawyers who aspire to help make this a better and safer world. As World War II came to a close, personal injury practice in the United States would be unrecognizable to lawyers of today. The Yellow Page listings were just that—listings of every lawyer by name, address, and phone number. Noth- ing else. The contingent fee was still considered unprofessional, if not illegal, in many states. Those few lawyers who did any personal injury work were viewed with distaste by the legal community as the lower form of lawyer openly called an “ambulance chaser.” Common-law rules of assumption of risk, contributory negligence, fellow servant, open and obvious danger, and privity in express and implied warran- ty cases, as well as guest passenger and charitable immunity statutes, gave judges a free hand to dismiss meritorious cases and bar access to the jury. At trial, lim- itations on presenting demonstrative evidence and expert witnesses, and pro- hibition n of per diem argument made proof difficult for plaintiffs. Finally, ju- ries were often selected for their blue ribbon community status and seldom included women, blacks, or other minorities. Most ordinary citizens were un- aware that they might be compensated for injuries suffered through the fault of others. Injured persons who wanted a lawyer were often unaware of the avail- ability of free legal advice and may never have heard of the contingent fee. How different things are today! The Yellow Pages as well as television pro- vide constant reminders to the public that the law gives the right to compen- sation for injury due to the fault of others or by defective products. The gen- eral public is swamped with information to aid in selecting from among many vii lawyers. Even large commercial law firms appear dedicated to help evaluate potential claims without charge. Firms that represent industry and insurance interests have divisions within the firm devoted to personal injury practice. Appellate courts over the years have responded to the needs of consumers and have removed or severely limited the impact of many former defenses. With the near universal abolition of strict contributory negligence, the successful pres- entation of a claim has become easier. The liberalization of the rules of evi- dence, expert testimony, and final argument; the democratization of the jury; and the ascendance of more progressive judges have resulted in the creation of a modern civil justice system that is almost like an industry, supported by many varied businesses designed to help a lawyer make a winning and profitable case. Lawyers representing plaintiffs on a contingent fee basis are no longer outcasts. Their meetings are now graced with appearances by aspiring gover- nors, legislators, and even presidents seeking approval and support. How this came about during the past fifty years is the theme of this book. While change came as a result of many factors, it cannot be denied that the central driving force started with a small group of personal injury lawyers banding together to find education in their craft and power to drive change. The organization of a few grew over the years into a national organization with af- filiates thriving in every state. It has become widely recognized for its impact on the education and training of lawyers, its principled influence in the courts, and its powers of political persuasion. It grew from a few white male workers’ compensation lawyers into a band of thousands of men and women of every race and creed. ATLA and its state trial lawyer associations as affiliates have be- come the single most influential force for improvement and change in the “personal injury practice” in our country today. This is the story of the people who formed, built, shaped, and changed ATLA and its state affiliates. Their creation now has national and state politi- cal action committees, news and legal magazines, regular amicus curiae ap- pearances in the courts, educational materials and seminars, books, judicial education programs, public research programs, victim support programs, and many other services dedicated to providing a better world for the victims of un- deserved personal injury or death, and an easier and more rewarding life for the lawyers who help them. This is not just a history book, however. For trial lawyer organizations, there are lessons to be learned on almost every page. As the organization de- veloped it faced many crises; some external and some internal. There were many setbacks and some narrow escapes from defeat. There were short-term and long-term heroes of the profession. Many helped the cause a lot. Many helped little. A few both helped and hurt. viii In many respects the challenges facing trial lawyers, ATLA, and the state or- ganizations today are anything but new. While the times and the opposition forces today are different in many ways from those faced by our predecessors, the underlying framework of the issues we face today is quite similar. Seeing how those issues were solved, understanding the successes and failures of those who came before will make not only an interesting read, but will prepare the read- er to face many of those same problems again. We hope to solve them with the benefit of knowing and understanding the mistakes and the successes of oth- ers who have fought the good fight before. ix 1 Humble Beginnings Fateful Encounter Many great ideas are born in humble circumstances. This one began at a cock- tail party. It was the fall of 1945. At a hotel in Winston-Salem, N.C., the Interna- tional Association of Industrial Accident Boards and Commissions (IAIABC) was holding its annual convention. Champagne flowed from a fountain in the middle of the room. Crocks of North Carolina moonshine, festooned with colored papers, stood invitingly alongside. The commissioners, standing in knots of threes and fours, were the arbitra- tors and judges who ruled on the workers’ compensation claims that arose out of two million accidents each year in the workplaces of America. Circulating com- fortably among the commissioners were their hosts for this evening, the attor- neys and lobbyists representing employers and workers’ compensation carriers who regularly appeared before the commissioners. A bottle of rare scotch ap- peared and was seized upon happily by a commissioner from Portland, Oregon. One subject of sharp discussion was a new and outspoken treatise, Horovitz on Workmen’s Compensation, published in late l944. Negligence rules, which came to dominate the law of torts in the previous century, had been used by courts to protect American industries from responsibility for the widespread injury and death that the Industrial Revolution visited upon workers. State workers’ compensation statutes were supposed to change all that. Now, Professor Horovitz charged, workers’ compensation law had itself developed rules and 1 procedures that favored employers and shut out the law’s intended beneficiaries. Horovitz cast an unwelcome spotlight on the human tragedy of workers who were killed or injured by the thousands in workplace accidents while the in- surance industry, protected at every turn by friendly legislators and compli- ant administrators, stubbornly fought every claim for benefits. Rarely had such stern criticism of the workers’ compensation system issued forth from the pages of a scholarly treatise. And so it was with some conster- nation that many of the commissioners recognized the tall, ascetic man with piercing dark eyes behind horn-rimmed glasses, talking animatedly at their party. It was Samuel Horovitz. Horovitz graduated from Harvard Law School in 1922.