The truth is, substantive legal reform lives or dies at both the federal and state legislative levels, as well as the courts. The ever-vigilant trial bar continues to hone a razor-sharp approach to combating reasonable, common sense legal reform, adapting its public, political, and judicial tactics to attack lawmakers and advocates before reform laws are passed and then to legally challenge those same laws once enacted.

The key for legal reform partners across the nation is intelligence that informs action. Corporate leaders, government affairs representatives, and grassroots advocates need the best available information to know where and how to spend their resources in defense of legal reform. As American Justice Partnership (AJP) and its dozens of state partners make clear, the trial bar perceives the legal reform movement as a threat to its pocketbook, indeed, its very existence. As a result, the trial bar “plays for keeps.” Corporate and professional association leaders, however, tend to view the legal reform effort as a “battle,” requiring one solid push to legislatively enact legal reform. As a result, the “battle” is often mistaken for the “war.” The trial lawyer industry does not make that mistake – and they continue to fight on multiple fronts.

As part of its ongoing effort to provide substantive support for state legal reform advocates, AJP is tracking the state-by-state tactics and initiatives currently employed by the trial bar to inhibit, defeat, or roll back legal reform gains. With the knowledge that trial lawyer associations are likewise monitoring the efforts of the legal reform movement, AJP and state legal reform advocates can only be effective when they fully understand the coordinated state-level activities of the trial lawyer associations in the judicial, legislative, political, and public relations arenas.

Tactical similarities abound among the various states surveyed, yet important strategic developments discovered in several key states warn of tactical shifts that states newer to the legal reform effort will find useful. Consider the following findings:

• In nearly every state surveyed, the trial bar is actively recruiting and funding political candidates for Governor, Attorney General, the state legislature, and – importantly – the state courts, particularly the state Supreme Court. The trial bar has learned that effective legal reform legislation can be undone by a trial bar-friendly judiciary.

•  In every state in which the trial bar is engaged in political campaigning, the trial lawyers are outspending the legal reform and business communities by wide margins – in many cases, 2-to-1 or 3-to-1.

• In the majority of states surveyed, the trial bar is hiring lobbyists with conservative, pro-business credentials to influence Republicans and pro-business Democrats who would otherwise support legal reform.

• In the majority of states surveyed, the trial bar is spending hundreds of thousands of dollars on professional public relations and “messaging” campaigns designed to promote a lawyer-driven agenda as a “consumer” issue, to improve the image of trial lawyers as guardians of a civil society, and to demonize American industry and legal reformers.

• In many states, the trial bar has established an effective case identification and support network to provide timely legal resources and financial backing for lawsuits in certain judicial circuits that bear the earmarks of potential constitutional challenge to existing legal reform laws.

Knowing what the trial bar and its advocates are doing underscores the need for constant vigilance and meaningful participation by the business and grassroots communities that care about a fair civil justice system. The legal reform movement must evolve to match the sophisticated, well-funded efforts of the trial bar to defeat and undermine common sense reforms – and having good intelligence is a critical first step.

© 2006 Todd Young