There was a fabulous article in the May 19 edition of “The New Yorker,” headlined: “The Bribe: How the Mississippi Lawyer Who Brought Down Big Tobacco Overstepped.” Yes, it's the incredible tale of Dickie Scruggs, who pled guilty a few months ago for trying to bribe a judge in a lawsuit over the division of contingency fees in a Hurricane Katrina suit. It was a disgraceful end to an audacious and amazingly successful legal career, in which Scruggs brought down corporate titans in asbestos, tobacco and insurance. The problem is that while the greedy, arrogant Scruggs went too far, what is the alternative for those with valid claims seeking top legal talent to make their case?

I'd love to link to the full story, but unfortunately the magazine only offers an abstract of the lengthy piece on its Web site. If you can get your hands on a copy, it's a compelling read. In fact, it would make a terrific movie. (It wouldn't be the first legal thriller featuring Scruggs, who was portrayed in “The Insider” about the landmark tobacco liability litigation.)

For your reading pleasure, I'll serve up some of the highlights, and my views on the subject. I invite you to share your take as well.

The author, Peter J. Boyer, notes that “although Scruggs is Mississippi's most famous trial lawyer, he never really was a 'trial' lawyer at all.” In fact, Boyer quotes Bill Reed, identified as an attorney and one of the subject's closest friends, as stating that Scruggs “hasn't tried 10 cases to verdict in his life.”

Instead, he is identified as “the master of the deal,” using the threat of a devastating class-action judgment and years of negative publicity to force settlements.

While all is fair in love, war and litigation (as well as politics, for that matter), one problem is that the deck was often stacked when Scruggs went to trial, the article makes clear. Operating in a state with an elected judiciary, Boyer reported, “as settlement money rolled in, the plaintiffs bar began investing it in the campaigns of plaintiff-friendly judges. Lawyers would then shop for friendly jurisdictions.”

Creating what the American Tort Reform Association decried as “judicial hell holes,” but which were hailed by Scruggs as “magic jurisdictions,” these kangaroo courts offered about the same odds for defendants as the Christians faced when the Romans forced them into the arena versus the lions. Indeed, about the only chance they had to survive was to run for their lives–offering massive settlements rather than face near certain death in court.

Scruggs made no effort to sugar coat this harsh reality. In the story, he is quoted as having stated the following at a 2002 panel discussion:

“The trial lawyers have established relationships with the judges that are elected. They're state court judges; they're populists,” he said. “They've got large populations of voters who are in on the deal; they're getting their piece in many cases.”

He goes on to describe such biased judges as “a political force in their jurisdiction,” adding that “it's almost impossible to get a fair trial if you're a defendant in some of these places.”

He conceded that “these cases are not won in the courtroom. They're won on the back roads long before the case goes to trial. Any lawyer fresh out of law school can walk in there and win the case, so it doesn't matter what the evidence or the law is.”

Isn't that an amazing statement?!? At least federal class-action reform cleaned up part of that problem.

The author goes on to report that “Scruggs began to formulate his own brand of litigation, entrepreneurial and boldly speculative, of which the actual practice of law was only one part. The strategic manipulation of politics and public opinion was just as important to this enterprise,” with Scruggs calling this his “three-legged stool.”

“By exerting pressure at key points, he could see to it that defenses collapsed and opponents settled without a jury ever having a say,” Boyer wrote. “He created a sort of floating legal syndicate, with changing players (only some of whom were lawyers) chosen as needed for a particular skill or connection.”

There's plenty in the piece about insurers and Hurricane Katrina litigation–material with which you folks are painfully familiar.

No matter how you spin it, there is no denying that Scruggs and his ilk perverted the legal system to extort huge figures from companies and entire industries. However, I can't help but wonder what judicial system can adequately take the place of this corrupt and shameful process.

Complicating the issue is that the “victims” here were not exactly innocent. Tobacco companies for years buried evidence of health risks to smokers, then brazenly lied about it. Asbestos makers did a tremendous amount of damage to thousands of people.

As for insurers, while they certainly are not in the same league as tobacco or asbestos, not all have been entirely fair in their investigation and disposition of Katrina claims, and their policies are anything but clear on wind-versus-water damage.

Given these circumstances, the question is how might an average Joe or Jane get adequate legal representation to take on huge corporations when they have a legitimate claim?

While it's wrong for courts to be rigged against defendants, it's also not fair for individuals to face teams of corporate lawyers determined to stall and appeal even legitimate claims into oblivion.

The one part of the “New Yorker” article that got my sympathy dealt with the fact that Scruggs nearly bankrupted himself in the tobacco suits. When working on a contingency basis, the trial lawyer takes all the financial risk and foots all of the expenses up front–which can be quite a bill when a class-action is involved.

Sure, there was a huge payoff–maybe a billion dollars for Scruggs and friends, but that was no certainty going in. And as Nathan Detroit said in “Guys and Dolls” after Big Julie nearly took all his cash in a floating crap game–held, appropriately enough, in the sewer: “Since I assume all the risk, should I not also assume some of the dough?” Indeed, he should, and so should the trial lawyer who takes on a deep-pocketed defendant with substantial political connections of their own.

Without the contingency fee system, average claimants would be virtually defenseless, left at the mercy of ruthless corporations, their attorneys–and, yes, their insurers–even if they have a valid claim.

There has got to be a better way than the casino/lottery style of justice so pervasive today, but I can't think of one.

Can you? Let's hear it.

Special Reports /

What Is The Alternative To Scruggs-Style Justice?

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