Ho, Ho, Ho! A Merry Christmas for Tobacco Lawyers

Commentary by Pete du Pont

Santa forgot to check his list twice this year. Some of the naughtiest people are receiving the largest Christmas gift: a group of trial lawyers who joined with states to sue tobacco companies and a group of public officials who can't wait to spend money from the settlements.

Plaintiffs' lawyers compete only with used car salesmen and indicted felons for the bottom slot of every poll that asks the public's opinion of trustworthiness, honesty and ethical standards. Politicians do only slightly better. Yet, there's just not enough room under the tree for all of the money the lawyers will get from the tobacco lawsuits -- with the help of the politicians who liked the lawyers' idea of suing everybody in sight.

By one estimate, in just three states about 30 law firms will receive upwards of $8.2 billion. However, recently several of the Texas anti-tobacco attorneys said their ultimate take of the final settlement in Texas alone could top $25 billion (yes, that is 25 with nine zeros behind it). And depending upon the size of the national settlement, lawyers involved in the cases could receive as much as $111 billion.

In a twist the unrepentant Scrooge would have admired, this payout is one of the largest transfer payments from the poor to the rich of all time. The lawyers portrayed themselves as white knights coming to the aid of those victims of evil tobacco "merchants of death." But Congress' Joint Committee on Taxation has found that 53 percent of the money in the tobacco suit will come from people making under $30,000 per year -- and 97 percent from those earning less than $75,000. In other words, poor Joe "carton of Marlboro," not "Big Tobacco," is paying these wealthy ambulance chasers.

In addition to helping maintain a lavish lifestyle, the lawyers' share of the tobacco settlement gives them a war chest for their next assault -- colluding with mayors to finance lawsuits against another legal but politically incorrect product: firearms.

Which brings us to the other scoundrels reaping large rewards this holiday season: public officials. The tobacco lawsuits may have been undertaken with the best of intentions -- to help needy smokers and to compensate the public that pays for their health care -- but there is a suspicious appearance that the public officials who worked with the trial lawyers saw the potential settlement as a honeypot for more spending.

For example, public officials in Florida and some other states were so intent on getting their payday that they changed the law to make it possible for manufacturers to be held responsible for the actions of those who use their products and to make the attorney-client privilege less secure. These changes further erode the rule of law and the idea that individuals are responsible for their actions. So while criminal law has begun to accept the notion that criminals, not society, are responsible for their misdeeds, the civil law has begun to embrace the principle that companies should be held responsible when people voluntarily use a legal, non-defective product and bad results occur. And while politicians in Washington pontificate about our country being a nation of laws, not men, state officials and the courts tailor the law in ways that rig verdicts in civil trials.

Now that this Pandora's Box has been opened an inch by the tobacco lawsuits, is it any wonder that mayors and tort attorneys are throwing it open wide to go after guns? What's next? Thousands of people die each year in automobile accidents, from eating fatty foods, and as a result of alcohol use. Don't be surprised when McDonald's, Seagram's, and GM are brought before the bar to account for the public health problems that their products contribute to.

The true victims of these lawsuits are consumers who will see their ability to defend themselves and their personal choices drastically limited in the future in the pursuit of the false god of a zero risk society (after all it's all "for the children and public health"). The real goal is less appealing and far more sinister: a hunger for money on the part of a dangerous partnership of lawyers and public officials.

Santa, if I may be so bold, maybe you should have your bifocals adjusted before next Christmas and, if necessary, check your list a third time.

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The National Center for Policy Analysis is a public policy research institute founded in 1983 and internationally known for its studies on public policy issues.