NCPA - National Center for Policy Analysis


July 5, 2007

America's legal system is based on the idea that government officials act on behalf of the public interest, not for personal profit.  That's why we don't pay policemen per arrest, judges a percentage of damages they award, or prosecutors a bounty for each conviction. Yet public officials are increasingly violating this ethic by outsourcing legal work to tort lawyers who profit from prosecuting public claims, says the Wall Street Journal.

  • The practice developed in the 1990s, when state Attorneys General promised trial lawyers a percentage (a contingency) of any settlement they could beat out of Big Tobacco; it has since spread like bird flu.
  • In Rhode Island and California, prosecutors have tried to give plaintiff firms a cut of judgments against lead paint makers.
  • Oklahoma wants to reward private attorneys for suing poultry companies.
  • Mississippi Attorney General Jim Hood has signed contingency deals in securities cases.

The practice has become a lucrative new tort business, to the point that plaintiffs attorneys are now recommending lawsuits to state officials, says the Journal:

  • In some instances, governments simply target an industry, and then let the tort lawyers decide whom to sue and on what grounds.
  • The tort lawyers then turn around and send a portion of their profits back to the politicians in the form of campaign contributions.

In the 1935 Berger case, the Supreme Court noted the obligation of a prosecutor "is not that it shall win a case, but that justice should be done."  Sometimes that means foregoing a suit, or balancing litigation with other public policy goals.  Such concepts aren't priorities for trial lawyers, whose main goal is to hit the financial jackpot.  The U.S. justice system is frayed enough without making trial lawyers the deputized vigilantes of public prosecutors, says the Journal.

Source: Editorial, "Prosecution for Profit," Wall Street Journal, July 5, 2007.

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