03/25/2007 03:45 pm ET Updated May 25, 2011

A Necessary Evil

Trial lawyers are taking it on the chin again. Yesterday, CBS referred to them as NGFTL (No Good Effin Trial Lawyers). So do a lot of other people. And they may all be right. Nevertheless, given the present vulnerability of workers and consumers, they are essential.

Once upon a time, we relied on federal regulation to protect us. Now, OSHA is understaffed, the FDA is under-funded and the EPA is ignored.

There was a time when the three broadcast networks were on our side--they specialized in safety exposes. But then came the fear of lawsuits. 60 Minutes was about to air its investigation of Brown and William's suppression of its internal findings that cigarette smoking was indeed addictive. Brown and Williams filed a lawsuit threatening billions of dollars in damages. CBS was in the midst of a merger with Westinghouse, and the lawsuit might have killed the merger. CBS executives decided not to run the piece until after the merger went through.

ABC's Primetime Live broadcast a report that Food Lion supermarkets regularly mixed rotten meat and fresh meat, then bleached the mix to remove its odor. To prove the point, two ABC reporters got jobs in a Food Lion supermarket and shot video of the mixing. Red Lion sued ABC, challenging, not the truth of the report, but charging that the reporters had trespassed and misrepresented themselves. Food Lion won the case in the lower court and was awarded more than five million dollars--ABC stock dropped by about 1.3 billion dollars over the next week. Most of the verdict was later reversed, and Food Lion received only two dollars. But the damage was done, no one was sure how a jury might react in a given case.

NBC Dateline did a piece on the vulnerability of Ford Pinto to rear enders, which, they claimed, often resulted in disastrous fires. Dateline then staged a fire to get good pictures. A disgraced NBC admitted its sins and paid damages. Since then, all three networks have operated with extreme caution.

Then came the worst. The Cincinnati Enquirer agreed to pay ten million dollars and run three days of front page corrections when it printed a story alleging that United Fruit had, in Central America, bribed foreign officials, used dangerous pesticides and mistreated its workers. In gathering the story, one of the reporters had listened in on voicemail messages on United Fruit phones. That's illegal; the validity of the story no longer mattered. Gannett, the owner of the newspaper, bit the bullet and settled immediately. Most of print journalism is now as cautious as the three networks.

(Ironically, United Fruit paid a twenty-five million dollar fine this week because it had bribed paramilitary forces in Columbia.)

Between the lack of federal regulation and media caution, who remains to hold malefactors' feet to the fire? Trial lawyers are the only alternative. They're not entirely a satisfactory alternative, but they're all we've got.

Most trial lawyers take cases only when there's big money involved, especially class action suits, which may result in billions of dollars in damages. With very few exceptions, tort lawyers take big fees, thirty to forty percent, of the total settlement. That means a lot of injured people wont find anyone to represent them and that none of the victims will receive the full measure of their awards. It's an extremely flawed alternative, but it's the last restriction on corporate greed--the sole threat to their bottom line.

(Coincidentally, this week, two federal courts refused to grant certification in two class action cases. The Houston appeals court ruled that shareholders could not file a class action suit against the banks that advised Enron. The investors lost of billions of dollars, the banks earned millions. But each shareholder will have to sue each bank individually and, as indicated above, trial lawyers will be unlikely to pursue such a case. A Mississippi judge decided that State Farm policy holders whose trailers or houses were built on "slabs" could not file the "slab cases" as a class action. Every trailer owner will have to file his own suit to get his few thousand dollars from the insurance company. Fat chance that tort lawyers are going to leap at that one.)

Winston Churchill said that democracy was the worst form of government, except for all the others. Tort lawyers are the worst way to protect American consumers. Except when there's nobody else to do the job.

They are a necessary evil.