No Contest : Corporate Lawyers and the Perversion of Justice in America - Hardcover

Nader, Ralph

Hardcover

ISBN 10: 0679429727 ISBN 13: 9780679429722

Publisher: Random House, 1996

Synopsis

Consumer activist Ralph Nader and lawyer and author Wesley J. Smith take a look behind the scenes of the law business, where the pursuit of corporate profit has eclipsed the pursuit of justice. Nader and Smith use human stories, accurate statistics, and common sense to provide an alternative set of reforms to open the system, streamline justice, and cut legal costs--all while guaranteeing Americans their day in court.

About this title

About the Author

Ralph Nader, the nationally renowned consumer activist, works in Washington, D.C. Author and attorney Wesley J. Smith lives in Oakland, California. Together Nader and Smith are the authors of Winning the Insurance Game and Collision Course: The Truth About Airline Safety.


From the Trade Paperback edition.

From the Inside Flap

ivist Ralph Nader and lawyer and author Wesley J. Smith take a look behind the scenes of the law business, where the pursuit of corporate profit has eclipsed the pursuit of justice. Nader and Smith use human stories, accurate statistics, and common sense to provide an alternative set of reforms to open the system, streamline justice, and cut legal costs--all while guaranteeing Americans their day in court.

Reviews

Corporate attorneys are at the center of trends that have increased corporate power in the past 20 years, declare consumer crusader and 1996 presidential candidate Nader and lawyer Smith (coauthors of Winning the Insurance Game). Their book is rambling but important, as it uses case studies to illustrate what they see as unfair situations and potential avenues for reform. For example, confidential settlements in injury cases deprive others from safety warnings; judges can refuse such settlements, and some states have begun passing anti-secrecy laws. Though the American Bar Association recommends that one-third of the members of state ethics boards be non-lawyers, that goal is mostly ignored, and disciplinary boards are notably lax in punishing lawyers who obstruct opponents, destroy evidence or overbill. In strong words, Nader and Smith attack tort reform proposals that would limit manufacturers' liability, calling them "tort deform" measures that would further protect corporations to the detriment of individual consumers. But they don't acknowledge that in some cases?such as the way it can distort medical care?our tort system does need reform. Along with political reforms, the authors find hope in efforts by Harvard Law School alumni to form the Appleseed Foundation, which will establish new centers for law and justice that focus on systemic change, not just legal aid for individuals. Author tour.
Copyright 1996 Reed Business Information, Inc.

A blistering attack on the tactics used by powerful lawyers to defend major corporations. Lawyers have a responsibility to defend their clients zealously, concede consumer activist Nader and attorney Smith in their third collaborative effort (Collision Course: The Truth About Airline Safety, 1993, etc.). But, they contend, the ``power lawyers'' who work for the nation's largest law firms and who defend its biggest corporations use the ``mantra'' of zealous representation to justify a host of misdeeds, from trampling individual rights to overlooking or even covering up corporate evil. The perversion of justice they describe in the title comes from an imbalance: Power lawyers can marshal the vast resources of huge law firms to overwhelm their opponents (usually individual plaintiffs represented by lawyers from small firms) and make themselves vastly wealthy in the process. It is not just individual claimants who lose out, the authors claim, but vast numbers of ordinary citizens who are injured or killed when corporations choose legal stonewalling over correcting product defects. Nader and Smith illustrate their arguments with dozens of cases, such as General Motors' decision to fight each lawsuit brought against exploding gas tanks in certain of its pick-up trucks rather than correct the problem. Other cases demonstrate the stonewalling tactics used by power lawyers, including delaying trials for years, destroying vital documents, bringing frivolous harassment suits against individuals, and making confidentiality a condition of out-of-court settlements, meaning that the next plaintiff with the identical grievance must start from scratch. The authors are critical of tort reform legislation pending in Congress, which they claim would offer ``a perpetual bailout for polluters, swindlers, reckless health care providers and makers of tobacco, defective vehicles, dangerous drugs, and many other hazardous consumer products.'' A brilliantly constructed attack on corporate legal defenders that ends with a rousing call to lawyers to remember ethics and idealism, but likely to enrage more lawyers than it inspires. (Author tour) -- Copyright ©1996, Kirkus Associates, LP. All rights reserved.

Consumer activist Nader and lawyer Smith trace a long list of ills that afflict our legal system?discovery abuse, excessive delay, lawyer overbilling?to the excessive influence of powerful corporate lawyers and the failure of legal ethics to deal effectively with their excesses. The book's strength lies in its many case studies to illustrate the issues. These studies are highly topical, and many will be familiar even to a casual observer of the legal scene. Even the elderly woman burned by hot McDonald's coffee is discussed. However, the book is weakened by the authors' polemical and sometimes snide tone, and little is added to the substance of legal discourse by consistently referring to tort reform as "tort deform." Still, the authors raise substantial ethical issues in the context of real-life legal situations and provide good starting points for the legal profession to examine its conscience and for the public to take it to task. Recommended for law school and academic libraries, and public libraries with substantial law or business collections.
-?Patrick Petit, Catholic Univ. Law Lib., Washington, D.C.
Copyright 1996 Reed Business Information, Inc.

From auto and airline safety to "the insurance game," Nader wins praise as consumer crusader and ridicule as national nag. In this volume--issued as he runs (walks?) for president as Green Party candidate--Nader and coauthor Smith (lawyers themselves) urge that wealthy, amoral attorneys employed or retained by corporations pose a far greater threat to our justice system than the much maligned ambulance chasers of the plaintiff's bar. No Contest is full of horror stories detailing how attorneys use secrecy, obstructionism, even destruction of evidence to establish and expand a "growing double standard between the procedural and substantive rights and powers of artificial persons [corporations] and real persons." Many examples are familiar (e.g., the tobacco companies), and some remain controversial (the health impact, if any, of silicone breast implants). But Nader and Smith place the troubling behavior of "power lawyers" in the context of the demands of the Constitution and its system of justice and the ethical precepts of the legal profession. The more theoretical content may be of limited interest to readers without law degrees, although it raises challenging questions for the thousands of attorneys who tell pollsters they no longer enjoy their profession. Overall, a stimulating examination of trends in the practice of law in an extremely litigious country. Mary Carroll

Excerpt. © Reprinted by permission. All rights reserved.

Lloyd N. Cutler, founding partner of the Washington, D.C., law firm Wilmer, Cutler & Pickering, is not your typical corporate attorney. He is the consummate power lawyer, a man so systematically dedicated to expanding his influence that he could have come straight out of central casting. Born in 1917, Cutler seems to have wanted it all at least from 1962, when he opened Wilmer, Cutler, which now has 230 lawyers and is one of the nation's highest-earning law firms. To say simply that Cutler touched all the bases and made all the right tactical moves is to fail to note bases and moves that he invented. His tracks illustrate both the pathways to power and the costs to society and people that result from the maneuvering of skilled power lawyers, driven by the twin towers of ambition and acquisitiveness.

Cutler wanted to build a law firm that would represent the largest, most powerful corporations in the land. He wanted to take their agendas to the courts, the regulatory agencies, and the Congress. He needed capable attorneys from pedigree law schools and former high officials in agencies such as the Securities and Exchange Commission and the Department of Justice. He needed to have it known that his young firm had a close relationship with the venerable New York law firm Cravath, Swaine & Moore, where he had once toiled as a junior attorney. He sought a high profile at his alma mater, Yale Law School, whose alumni included leading corporate executives, attorneys, and politicians, so he led a fund-raising drive and spent a semester teaching a course at the school on "the limits of regulation." What he needed he got. But there was more.

Cutler had to be more than a lawyer-lobbyist for many companies and trade associations, more than just a corporate attorney. He sought, both personally and for the firm's growth, to appear as a statesman, as a person so influential and well connected that he could, at times, transcend individual contesting parties and represent "the situation," as the legendary Washington criminal defense attorney Edward Bennett Williams liked to describe his own role.1 The concept of the "lawyer for the situation" is associated with Louis Brandeis, who considered himself to have served in such a role in at least one matter before he became a Supreme Court justice in 1916. But this representation was attacked by critics during Brandeis's confirmation process. University of Pennsylvania law professor Geoffrey Hazard, Jr., says the "lawyer for the situation is advocate, mediator, entrepreneur, and judge, all in one. He could be said to be playing God." He adds, "Playing God is tricky business."  Cutler strove to be praised by presidents, senators, and cabinet secretaries, to serve on presidential commissions, to be published regarding his "detached" reflections on governmental reforms, and to become, as one of his clients, The Washington Post, described him in 1994, "a pillar of the Washington legal establishment."

To Cutler, the quests for power and position were of a piece. In a town where "social is political," he was and is a frequent presence in the city's salons. He befriended the reporters, columnists, editors, publishers, and politicians who count for his purposes. He took them to Baltimore Orioles baseball games, appeared at their dinner functions, and ended up representing quite a few of them as clients, including CBS, ABC, the Los Angeles Times, James Reston of The New York Times, and syndicated columnist Joseph Kraft. Officially a member of the Democratic party but aggressively bipartisan when the need arose, Cutler made sure his circle included the Democrats' mother of all political networkers, Pamela Harriman, Republican Secretaries of State Henry Kissinger and George Shultz (both clients), and Katharine Graham, publisher of The Washington Post. He had the right combination of meticulous patience and ego to connect with the powers that be and ride on their shoulders. Cutler's socializing with such influential persons doubtlessly made them less inclined to take seriously the substantive criticisms made about his work.

High-and-mighty society was but one important dimension of Cutler's presentation of self. There had to be more to him than just a wealthy attorney on the make. In 1968, sensing the mood of the street demonstrations, Cutler brought many in his firm down to the District of Columbia criminal courts during the night rioting after the slaying of Martin Luther King to provide counsel to the detainees. The resultant publicity, along with his enduring Democratic party credentials, led President Lyndon Johnson to appoint Cutler to be executive director of the National Commission on the Causes and Prevention of Violence. In 1979, President Jimmy Carter appointed Cutler to be White House counsel. In 1988, during the Reagan administration, he was chairman of the President's Quadrennial Commission on Executive, Legislative and Judicial Salaries, which was designed to take the public heat off Congress and the president on the touchy subject of pay increases. Cutler came through with a very vocal recommendation to raise the salaries of the president, cabinet members, members of Congress, and federal judges by at least 50 percent. Was there a better way to become popular with the branches of government, each of which is crucial to your law firm's success?

Once again, in 1994, Cutler let it be known that he was available for White House service. President Bill Clinton had seen his White House counsel, Bernard Nussbaum, resign in the wake of the Whitewater investigation and the suicide of Nussbaum's deputy, Vince Foster. Clinton needed the reassuring influence of an old Washington hand whose confident voice and friendly, high-level media contacts could be translated into instant political capital. He was looking for, as he put it, "a Lloyd Cutler type."4 The man himself was available, but he laid down distinct terms never witnessed in White House history. He would serve as a "special government employee" (SGE) without compensation for 130 working days, the maximum period permitted under this designation. SGE status was developed years ago to allow federal agencies to bring in scientific or other technical specialists for a short period without obligating these experts to sever all relationships with their employers. It was never remotely applicable to top, sensitive positions like White House counsel. Until, that is, power lawyer Lloyd Cutler conceived of that application.

As an SGE he could remain as a senior counsel to his law firm and continue to draw a salary (Cutler said that his earnings, reportedly $450,000 annually, would be reduced to account for the time spent at the White House), be exempt from some of the more stringent government ethics regulations and would continue working for undisclosed private clients whose needs did not conflict, in his judgment, with his White House duties. Imagine, for a moment, if an experienced attorney for the AFL-CIO retained his position there and at the same time became White House counsel. The corporate and media uproar would be loud and explicit. But few complaints were heard when Cutler, a key legal representative of major corporations, assumed a dual role. Cutler had spent a lifetime laying the groundwork that led the Washington publication Legal Times to write, "Full-time White House counsel have never been able to conduct any outside work, but no one has raised questions about Cutler's arrangement--perhaps partly because of his stature."

Having established this dubious precedent that blurred the separation between the public and the private, Cutler then grandly announced that, though he did not have to, he would voluntarily disclose information about his clients and would voluntarily comply with the Clinton administration's postemployment guidelines, such as a five-year ban on official appearances before the agency he would serve and a lifetime ban on lobbying for foreign interests. Such promises may matter very little, since it is difficult to envision an "appearance" before the White House, and other attorneys at Wilmer, Cutler can continue to lobby for foreign interests attracted to the firm by the Cutler name. Such unenforceable self-restraint nevertheless appeared to impress President Clinton, who described Cutler as a "man of seasoned judgment . . . and the highest ethical standards."

There are three vital functions that a White House counsel is expected to perform: screen nominees for sensitive executive branch positions, supervise the selection of federal judges, and keep the president out of legal difficulties. With this portfolio, on March 9, 1994, Cutler was at large in the White House while his law firm, retaining his name and senior counselship, was on the prowl for more business and more success for its clients.

Cutler's SGE coup was all the more remarkable because his past "seasoned" advice had not always worked out. He was a strong supporter of a controversial Reagan nominee to the Supreme Court, Robert Bork, whom the Senate rejected; he was an unyielding backer, until her withdrawal, of Aetna Insurance Company's general counsel, Zoe Baird, to be Clinton's attorney general, though she plainly lacked the experience and judgment for this top cabinet post; and he advised Clinton not to seek a special counsel to investigate Whitewater, again a losing position as Clinton soon acceded to congressional and public pressure and asked for such an appointment.  So Cutler was at least a three-time loser on crucial matters. But the privileges of power overcome such liabilities.

Some forms of influence in Washington are priceless. One of them is for a law firm to have its senior counsel in the cockpit position at the White House passing on scores of federal court nominees, including an appointee to the Supreme Court. Among a group of semifinalists, Stephen Breyer was Lloyd Cutler's friend and ideological match, especially in their shared oppos...

Edition details

• Publisher: Random House
• Publication date: 1996
• Language: English
• ISBN 10: 0679429727
• ISBN 13: 9780679429722
• Binding: Hardcover
• Edition number: 1
• Number of pages: 427