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Conrad the Appellate

State Sen. Conrad Appel is an outspoken critic of trial lawyers. And yet he may be the legislature’s most prolific plaintiff.

But a wealthy businessman publicly undermining the civil justice system is not only hypocritical; it’s dangerous for our democracy and our environment.

Wendell Gauthier, the most successful plaintiff’s lawyer in Louisiana’s history and one of the most influential lawyers in 20th century America, was born in 1943 in rural Acadia Parish and raised in the small town of Crowley, where his father met an ambitious young man originally from Marksville named Edwin Edwards.

When Wendell was 12 years old, his dad managed Edwards’s very first political campaign, a race for Crowley City Council, which he won. Eventually, of course, Edwards would win a seat in the United States House of Representatives and four terms as Louisiana governor. And later, Gauthier would move to Metairie, a suburb of New Orleans, where he would find his own success.

He may have lost his first big case, but it was Gauthier and his team who uncovered secret documents from tobacco companies, documents that eventually resulted in 1998’s historic $206 billion settlement, split between 46 states, including Louisiana, and 5 territories. (It is perhaps no surprise that Louisiana would become centerstage for so much of the tobacco litigation. Thirty years before the mega-billion dollar settlement, Louisiana was the very first state in which a tobacco liability case reached a jury).

Gauthier had won a string of other high-profile cases as well: $87 million for the families of those killed in a fire at MGM, $140 million for the families of the 141 people killed when a walkway collapsed at a Hyatt hotel in Kansas City, and a $4.25 billion settlement with victims of botched silicon breast implants.

Two years before his death, Wendell Gauthier took on gun manufacturers, on behalf of the City of New Orleans, an effort spearheaded by New Orleans Mayor Marc Morial.

His success was a threat to others, and he became emblematic of corporate America’s most terrifying boogeyman: The dynamic and relentless trial lawyer.

Wendell Gauthier

In 1999, a young Louisiana state representative named Steve Scalise was running for Congress in Gauthier’s district, and he was no fan of his lawyer neighbor. “They did this with tobacco and they will do it with other industries if they win here,” Scalise had explained to The New York Times, in reference to his proposed legislation that sought to immunize gun manufacturers from lawsuits. Unless we step in and put a stop to it, they will keep on attacking industries that are obeying the law because it is a source of money for the trial lawyers.”

Wendell Gauthier died from liver cancer in 2001, at the age of only 58.

If he were alive today, his congressman would have been Steve Scalise, the current House Majority Whip who was recently severely injured after a mentally unstable man shot him and others with a high-powered, semi-automatic, Chinese-made SKS assault rifle, the very kind that had once been banned, in 1994, under the Clinton administration.

Gauthier’s state senator would have been a man named Conrad Appel, a conservative Republican who, much like Scalise, is an outspoken opponent of trial lawyers.

“We are losing untold thousands of jobs so that the trial lawyers can fulfill their own desires,” Sen. Appel recently warned on the far-right blog The Hayride, “and because of politicians who are beholden to trial lawyers, no meaningful tort reform bill will ever see the light of day.”

Appel’s diagnosis isn’t original or even remotely accurate, but for more than 25 years, wealthy conservatives, right-wing politicians, and so-called “business” lobbyists, particularly in the South, have engaged in a well-financed and sophisticated campaign against trial lawyers. In states like Louisiana, these efforts have largely succeeded by framing the issue in terms of amoral greed and by exploiting the public’s ignorance and misunderstanding of tort law and the nature of the judicial system.

“It’s disguised as the idea that people are trying to make a fortune off of business,” explains LSU Law Professor Ken Levy, “but in fact, the people who are really exploiting the judicial system are businesses themselves.”

Take, for example, Sen. Conrad Appel. Despite his rhetoric about Louisiana’s “jackpot justice system,” Sen. Appel may be the most prolific plaintiff in public office in Louisiana.

A cursory search of only Orleans and Jefferson Parishes reveals he and at least one of his companies, ConstructionSouth, have been plaintiffs in multiple lawsuits during the past few years. Because he is registered as the owner or agent of multiple companies that operate in multiple jurisdictions, an exact number is difficult to determine. But, according to several legal professionals, one thing is abundantly clear: Conrad Appel ranks in the top percentile of the most litigious people (and corporate entities) in the state.

He has sued for product liability, breach of contract, detrimental reliance, attorney’s fees, and, on multiple occasions, collection of debt. When he ran for re-election, he even sued his opponent, John LaBruzzo.

Of course, he has an absolute right to rely on the judicial system, and one must assume his lawsuits had merit and deserved the court’s time and resources. One must also assume he realizes that simply by filing a lawsuit, he is often compelling a defendant to spend thousands of dollars for legal representation. It is easy to give Sen. Appel the benefit of the doubt, because Louisiana has strict sanctions in place to punish plaintiffs who file frivolous lawsuits.  As an astute businessman, he would not likely subject himself to stiff judicial penalties by filing sham lawsuits.

But here is the problem: Conrad Appel’s claims are no more important and deserve no less attention than the average person who is t-boned at a red light or injured because of the wanton and reckless disregard of their safety by a corporation. Yes, he deserves his day in court, just like every other American who seeks recourse through the judicial system.

This begs the question, though: Why would a man who clearly values the function of the courts in resolving his own private business disputes champion “tort reform” as a panacea for Louisiana’s economic woes?

The answer is simple: This has nothing to do with improving the state’s economy or increasing the number of jobs in Louisiana (after all, California is the fifth largest economy in the world and has much fewer restrictions on litigation) and everything to do with protecting the profits and the power of large corporations. The aim is not to improve the state’s “legal climate,” quite the contrary.

“This is about enabling corporations to get away with hurting individuals and communities,” Prof. Levy explains. “By disallowing and discouraging people from seeking justice, corporations can be allowed to inflict damage, like environmental damage, without consequences.”

Louisiana is ground zero for this campaign not because its people have been exploited by unethical, greedy trial lawyers but because they have been exploited, for decades, by environmentally negligent corporations with deeper pockets than the entire state government.

“Tort reform” is not a cogent policy agenda; it is a campaign slogan that relies on the public’s ignorance of the definition of the word “tort” and positive associations of the word “reform.” In fact, Louisiana already passed a comprehensive set of “tort reform” laws in the mid 1990s, but the slogan continues to have staying power.

Newspaper advertisement for Louisiana tort reform legislation in 1995

17 years ago, the Center for Justice and Democracy at New York Law School published an astonishing report, The CALA (Citizens Against Lawsuit Abuse) Files: The Secret Campaign by Big Tobacco and Other Major Industries to Take Away Your Rights, and its findings are still relevant and timely today.

“Since 1991, ‘tort reform’ advocates have set up dozens of tax-exempt groups in at least 18 states (currently there are 27 active groups) to plant their spurious ‘lawsuit abuse’ message in the media and the public consciousness, and to influence legislation, the judiciary and jurors,” the report states. “These groups claim to speak for average Americans and represent themselves as ‘grassroots’ citizens groups determined to protect consumer interests. But their tax filings and funding sources indicate that they in fact represent major corporations and industries seeking to escape liability for the harm they cause consumers.”

These organizations are still active and incredibly effective in Louisiana. Consider, for example, the survey published two weeks ago by the U.S. Chamber’s Institute for Legal Reform (ILR), which ranked the state’s legal climate last in the nation. It’s a comically bogus survey that exclusively polls corporate lawyers and executives at companies earning more than $100 million a year, the overwhelming majority of whom have never even been to Louisiana.

And when the survey was released, it was picked up, without any questions asked, by The Advocate, WWL, The Baton Rouge Business ReportThe Daily Advertiser, and The Houma Courier, among others. Some of the reports even included a quote from Melissa Landry, the executive director of Louisiana Lawsuit Abuse Watch, a non-profit organization that had been previously identified as a part of this well-financed, national network.“Litigation is a growing industry in Louisiana,” Landry told The Advertiser in a written statement, adding that the state bears a perception that “it is difficult, if not impossible, for some to get a fair shake in our courts.”

Melissa Landry’s husband is a man named Brian Landry, who, for the the last 17 years, served as the Vice President of Political Action at the Louisiana Association of Business and Industry (LABI), the state’s most influential lobbying group. In April, he took a new job. Now, he is the Vice President of Political Affairs for the Louisiana Chemical Association.

Even though LABI and Louisiana Lawsuit Abuse Watch and people like Sen. Conrad Appel were more than happy to spread the news, ILR didn’t need to spend a dime to get the message of their survey out. But because they have more money than they know what to do with, they hired a truly impressive Gordon Ramsey impersonator, bought up a bunch of airtime on statewide television, and filmed this commercial:

The ILR’s survey isn’t a valuable or instructive piece of academic research; it’s an industry-created product that attempts to sell Joe Q. Public on “legal reform” without explaining anything at all about what that actually means, and you’re not going to find that from Sen. Appel either. But when you dig a little deeper, you will discover their real goals.

Stephen Waguespack, LABI’s executive director, has a few ideas.

First, Louisiana should make it much more difficult for poor people to file a lawsuit when they are owed less than $50,000. Of course, that is not how he put it, but that’s exactly what he is proposing. Currently, Louisiana has the highest jury threshold in the country. Any claim under $50,000 is decided by a judge. According to Waguespack and others who are employed as business lobbyists, the high threshold means that trial lawyers are better able to negotiate higher settlements for their clients than they would be under a decreased threshold.

“This encourages lawsuits and settlements under that $50,000 level and has created a profitable market in Louisiana for car wreck cases,” he argues, treating individuals who were badly injured due to someone else’s negligence as nothing more than a commodity and completely ignoring the fact that settlements are an acknowledgment, if not an outright admission, of fault.

To some, decreasing the threshold may sound simple and even fair, but on average, a plaintiff has to spend $40,000 on a jury trial, which means the higher threshold actually protects poor and working class people from astronomical legal fees and ensures that average citizens who sustain injuries or damages under $50,000 aren’t either forced to spend every dime they have so that a jury can decide instead of a judge or are simply placed in a situation in which they have to accept whatever is offered.

It may sound counter-intuitive, but a lower threshold for jury trials makes it dramatically more difficult for the average citizen to negotiate with a big insurance company. Waguespack’s argument also relies on the assumption that the $50,000 threshold allows trial lawyers to essentially extort money from businesses in a settlement, ignoring that a plaintiff must prove the value of their injuries or damages in a court of law.

In other words, the proposal has nothing at all to do with improving the legal climate or judicial efficiency. In fact, the main opponents of Waguespack’s proposal are not trial lawyers; they’re judges and district attorneys who already have enormous challenges in impaneling juries, particularly in rural parishes. Again, this is entirely about making it more difficult for an ordinary citizen of Louisiana to access the judicial system.

“It is blatant hypocrisy, because these people use the courts for own gain all of the time,” Prof. Levy says. “But they would deprive others of the same opportunity. This is a trend among conservative politicians, and it is projection. If anyone here in Louisiana is guilty of filing frivolous litigation, it’s business interests, not the ‘little guy.'”

But decreasing Louisiana’s $50,000 jury threshold isn’t the primary objective of the corporate lobby.

“Hand-selected attorneys are broadly attacking numerous energy companies that have legally operated with coastal use permits in Louisiana for years, rather than seeking to penalize specific actions or bad actors,” writes Waguespack. “And the pursuit of lawsuits didn’t stop there(;) parishes are now being pressured by the Governor’s team to do the same. This litigious behavior by state government itself is simply unprecedented and unacceptable.”

In recent years, this has been the corporate lobby’s most effective line of attack, an attempt to convince everyday Louisianians that innocent energy companies are being “broadly attacked” by “hand-selected attorneys” even though these companies “have legally operated in Louisiana for years.”

Organizations like LABI and the Louisiana Oil and Gas Association (LOGA) have relentlessly argued that the attorneys who pursue any and every negligence case against energy companies are merely greedy, rogue actors and not what they actually are: Legal representatives of thousands and thousands of ordinary, hard-working Louisianians whose health, environment, culture, and livelihoods have been irreparably damaged as a direct result of what they contend to be the illegal actions and negligence of a mega-billion dollar industry that refuses to be held accountable under the law and treats any and every safety and environmental regulation as an existential threat.

Just like tobacco companies in the 1990s, they are privately aware of the extent of their liability, and they are more than capable of paying the damages for which they are responsible. But why would they be in any particular rush to settle this? The Republican majority in the Louisiana legislature and the corporate lobby, perhaps astonishingly, have convinced themselves and their base that it is better to deny justice to their own fellow citizens than to demand accountability from a mega-billion dollar industry.

“Are there other public issues that in my view merit this type of litigation?” Wendell Gauthier asked rhetorically in 1999, two years before he died.

”Water,” he answered. “We have a problem right now with chemicals that are flooding into the water supply and an industry that again just refuses to address the problem.”

Nearly two decades later, the problem has gotten worse, and the industry continues to look the other way.

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