Home -> Law Blog Directory -> Legal Commentary Blogs -> BeldarBlog

Legal Commentary

: BeldarBlog

"I will beat these people, just like I've been beating them for my whole life"

By Beldar

John Edwards in tonight's Democratic debate in New Hampshire (my transcription from TiVo, emphasis also mine), in an impassioned riff that's the very core of his stump speech:

I think what matters ? we've had a lot of conversation about the first day in the White House. I think we ought to picture what that first day in the White House would be, for each of us. I'll just speak for myself. You know, I'm the candidate up here who's never taken a dime from a Washington lobbyist in my entire time in public life, or a dime from a special-interest PAC. The first day that I'm president of the United States, there will be no corporate lobbyists working in my White House. There will be no lobbyist who's lobbied for foreign governments.

And it's ? this is a very personal cause for me, because I come from a family ? my father's in the audience tonight ? where my father worked for thirty-seven years in the mills. He didn't get a chance, like I did, to have a college education.  And this is a fight for the middle class and for families just like I grew up with. My grandmother, who helped raise me, had a fifth- or sixth-grade education, came from a family of sharecroppers. She worked in the mill every day so I could have the chances that I've had.

I spent twenty years fighting irresponsible corporations in courtrooms. I know what it takes to fight these people and win. But here's what I would want people to know.

What I want people to know is: This battle is deep inside me, and it is personal. And it matters, whether it's personal or not, because if it's either academic or political, when the tough fight comes, you'll walk away from it, you'll do what's political. This fight is deeply personal to me. I've been engaged in it my whole life, the fight for the middle class, the fight against powerful special interests. And it is a fight I will wage on behalf of the people as president of the United States....

This spiel presumes that everyone in the audience knows that Edwards, before being elected to the Senate, was a prominent and, by all accounts, very successful plaintiff's personal injury trial lawyer. That's certainly a reasonable presumption on his part, given his high degree of name recognition dating back to the 2004 election in which he was the Dems' Veep nominee.

This spiel also presumes that the substantial portion of the American public who thoroughly despise plaintiffs' personal injury trial lawyers as as class are already lost to him as potential voters. That's not Edwards' intended audience at all.

Instead, he's speaking to the (also very substantial) portion of the American public who are still capable of viewing plaintiffs' personal injury trial lawyers as champions of the downtrodden, the oppressed, and the victimized. And to that portion of the public ? most of whom are Democrats or who at least lean Democratic, and who might therefore vote in the Democratic primaries ? the subtext of Edwards' message is this:

Yes, I'm a newly rich man. I have a big house, and I can buy $400 haircuts without a second thought, and I can't remember the last time I sat in a center seat with my knees against my chest on a commercial airline flight. But that's because I am a gladiator, a champion, a warrior without compare ? and I've wrested the fortune that permits me to own that big house and pay for those haircuts and airline flights from the greedy, blood-drenched fists of the robber-barons whose sole joys in life are to deny badly needed liver transplants to young girls who actually do have health insurance. And if you want to enjoy the sheer spectacle of me slaying the Big Insurance Companies, the Big Pharmaceutical Companies, and the Big Oil Companies from the White House (instead of just from the courtroom), give me your vote!

It's not exactly political jujutsu, because he's not speaking to the voters who detest plaintiffs' personal injury trial lawyers. He can't "flip" those people. He's not even trying (at least not now, not during primary season).

But it's certainly an example of exploiting ? ruthlessly, shamelessly, aggressively, incessantly ? the exact part of his career history that other voters than the ones he's trying to woo consider to be among his biggest liabilities.

Way back in December 2006, I wrote that Edwards' career as a plaintiffs' personal injury trial lawyer ought not automatically disqualify him from public office. Rather, I argued, qualities (or lack thereof) personal to him ought to compel that result.

But there's a reason that Gladiator won Oscars for Best Picture and Best Actor, after all! Edwards' exploitation of his past as a plaintiffs' personal injury lawyer is deliberate and, perhaps, very canny. As the 2008 presidential campaign has played out, it's become increasingly clear that that career history is not only fundamental to his personality, but to his basic campaign strategy.

*******

So just how successful was John Edwards as a trial lawyer? Did he almost always win? Did he win most of the time? More than fifty percent of the time?

Nobody really knows, not with mathematical or statistical precision. Even John Edwards himself doesn't know, not in enough detail to answer those exact questions, as phrased.

Practicing law isn't like playing baseball. In baseball, every at-bat ends in an out or an on-base. Those are the only options, so it's very easy to do a nice, clean statistical analysis of a hitter's career at-bats. The on-base portion of the Venn diagram has "hits" and "walks" (including hit batsmen) and "errors" ? again, clean, exclusive, and chartable on a sheet of graph paper (or its electronic equivalent). People can, and do, compare the statistics of baseball players not only from different teams, but different eras, and make rational arguments about who was great, who was merely good, who was average, and who was below-average in comparison to one another.

Edwards won some big jury verdicts. Those are indeed matters of public record. But those were, almost certainly, something under 20%, and probably under 10%, and maybe under 5%, and quite possibly under 2%, of the total cases he handled during his career.

Even a goodly chunk of the jury verdicts ? the ones that got him big local headlines and corresponding respect among his peers in the North Carolina bar ? ended up settling on appeal. And I would bet my ranch (well, anyway, the ranch I someday aspire to own) that just like every other plaintiffs' personal injury lawyer in the United States during the last half-century, the overwhelming, vast majority of his cases settled before trial.

Plaintiffs' personal injury lawyers have a truism: You don't make your fortune off the cases you try. You make your fortune off the cases you settle, based on the settlement amounts that are (in significant part) a function of the (vastly smaller) number of cases that you try.

Oh, don't misunderstand me: If you don't have a reputation gained by winning a sufficient number of high-profile cases, you're unlikely to be able to settle most of your cases for above-average amounts. And without that reputation, you won't attract very many, if any, of the cases whose fact-patterns can give rise to huge settlements. (Brain-damaged baby cases don't grow on trees! There's a competition for them!)

But by definition, settlements are "draws." They don't get counted up as "at-bats." They disappear down the memory hole, remembered only the individuals involved in each of them.

Whether a settlement is a "good settlement" or a "bad settlement," a "win" or a "loss," is a very, very subjective subject. It's not just common, but incredibly common, for the lawyers for both sides in a settlement to claim victory in their private discussions with their clients and/or their comments, if any, to the press. Yet it's not just common, but incredibly common, for the lawyers for both sides in a settlement to secretly believe, in their heart of hearts, that they lucked out, or squeaked by, or avoided disaster, or broke even.

Indeed, settlements aren't generally matters of public record. To the contrary, large and increasing percentages of them over the last half-century have been conditioned upon their terms remaining confidential ? including settlements while appeals were pending, from those cases that have already gone to highly publicized verdicts. That conceals results that might otherwise have been deemed "victories" by other knowledgeable observers. But it also conceals results that might otherwise have been deemed "defeats," and nobody, not even the law firms and clients involved, can tell you with any precision at all how many of each category have been so consigned to secrecy.

As someone who's practiced on both sides of the personal injury bar in Texas for about as long as John Edwards practiced law on the plaintiffs' side in North Carolina, and from time to time in comparably sized cases to those he's associated with by reputation (albeit from the defense side in those), I will guarantee you this:

There does not live or breathe the plaintiffs' personal injury trial lawyer who has not wondered, agonized, paced the floor debating, and perhaps even vomited into the toilet wondering (to himself, to his spouse, maybe to a trusted partner), after the conclusion of a mediation that resulted in a settlement: "When the insurance company's adjuster or corporate representative boarded his flight back to ___, did he still have $___ thousand/hundred thousand/million dollars in 'settlement authority' that he ended up not having to agree to pay out? Did I leave big money on the table by settling, when I should have held out, maybe tried the case?" Because if he did ... then by one standard, the plaintiff's lawyer lost that case.

*******

So: If you're trying to predict how often President Edwards will be able to sustain his veto overrides, or ram unwanted legislation down the throats of an objecting (a/k/a "powerful special interest"-toadying) set of Congress-critters, what inferences can you actually draw from his success as a courtroom lawyer "who's been winning" against "these people" for "all [his] life"?

You can't. Not if you know the truth about the nature of the career in which he was engaged before he entered politics. Not if you understand just how hard it is to compare trial lawyers in the same way that we compare, for example, baseball players or hedge fund managers. Nobody can either prove or disprove, objectively or statistically, Edwards' claim that he's been "beating these people." You can verify that he's gotten very rich by doing it ? but that could just as well mean he's won big on one out of every 20 cases, not on 17 out of every 20.

If you're a Democrat, would you be satisfied with a President Edwards who wins (but wins big) only one out of every 20 times he's in a political battle? I rather think not. Hell, Nancy Pelosi and Harry Reid are already doing better than that.

You can only buy into John Edwards' inference ? "I'll whip 'these people' as president just like I've whipped them as a hugely successful plaintiffs' personal injury trial lawyer" ? if you're a bitter, class-resentful, and (most importantly) ignorant sucker.

And John Edwards is counting on enough Democrats to be suckers who will buy into that spiel so that he'll get their party's nomination. I still don't' think that's likely to happen. But that is his fundamental pitch.

Full post as published by BeldarBlog on January 06, 2008 (boomark / email).