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Exposing Trial Lawyer Earmarks Growing in Congress

The opinions expressed by columnists are their own and do not necessarily represent the views of

Every summer, I suspect that those who work at garden supply stores are inundated by people looking for advice on how to fight back against invasive vines and weeds that creep into their yards.  Suggestions might include hacking back the trespassers, ripping them out by the roots, or even dousing them with powerful herbicides.  But the truth is, no matter how much sweat, time and money they invest into this effort, there’s a good chance they’ll just grow back. 

A similar lesson holds true for trying to contain the growth and threat to our economy of the plaintiffs’ trial bar:  no matter how much work we put into bringing balance to the U.S. legal system, there’s a good chance plaintiffs’ lawyers will regroup and look for new ways to sue.

Unfortunately, those of us in the nation’s capitol have seen first-hand what happens when the trial bar is reinvigorated and on offense.  During this legislative session, the trial lawyer lobby initiated a stealth campaign to convince Congress to pass legislation giving lawyers many more opportunities to file lawsuits. 

In fact, over the past two years, the Institute for Legal Reform (ILR) has identified 48 trial lawyer ‘earmarks’—vehicles giving them greater opportunity to sue—tucked into a wide variety of bills now before Congress. 

As someone who’s been in the legal reform trenches for years, I can tell you that the scope and breadth of these earmarks is truly staggering.  Liability expanding language has been tucked into everything from homeland security and farm bills to FDA reauthorization and telecom legislation. 

In addition, a handful of tax breaks, which apply only to trial lawyers, have been added to tax and mortgage relief bills.  Most astonishingly, this included a provision in the Renewable Energy and Job Creation Act of 2008 (H.R. 6049) that would have granted a $1.6 billion tax break to trial lawyers by changing the rules on how expenses incurred during the representation of a contingency fee client are deducted.  Thankfully, under broad pressure, this trial lawyer tax break was recently removed by the sponsor of the bill. 

In order to expose the trial bar’s expansive agenda, ILR is launching a Web site and media campaign,, illustrating the full range of the earmarking effort.  The site highlights and monitors each of the trial lawyer bills making their way though the 110th Congress. 

Even though it is insidiously advancing its liability expanding agenda during this session, the plaintiffs’ trial bar is counting on the November election to deliver them even more members who are friendly to its goals.  We suspect that’s when the real fireworks will begin.  

The out-of-control U.S. lawsuit system already costs the average American family of four $3,200 every year.  However, it looks like the trial lawyer industry is not satisfied with its current capacity to sue.  And so, it is working in Congress to further line the pockets of plaintiffs’ lawyers at the American people’s expense.  If the plaintiff bar’s lawsuit-expanding agenda is allowed to envelop Congress, Americans will feel its impact through lost jobs, higher prices and clogged courtrooms. 

By creating this new Web site, ILR hopes to cast a much-needed spotlight on the truth behind the plaintiffs’ trial bar’s tactics.  Only through broad exposure and widespread pressure will Members of Congress weed out this undesirable influence before the trial lawyers’ scheme is fully able to take root. 

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