Gaining distance from fume litigation

The law, I once was told, is not about the truth. It's a contest between different versions of the truth.

The man who told me this was a distinguished judge. I was a rookie reporter honored to join him in chambers while a jury deliberated the fate of Carl Beaumarriage.

You've never heard of Beaumarriage. His trial was about just another death from another domestic dispute in another small American city. But it was my first murder trial and it taught me the truth about going to court: It's a game. Criminal or civil, the stakes are high and at least one of the participants doesn't want to be there. But all the same, to the people who play it day in and day out, it's a game.

Nobody disputed that Beaumarriage was responsible for the death of his wife; she died in a violent domestic fight that was, apparently, part of their marital routine.

The defendant's version of the truth was that they were fighting, she hit her head and collapsed. The prosecutor's version of the truth is that they were fighting, he hit her head and she collapsed.

The view that prevailed — honestly, who could really know? — would determine whether the defendant would be convicted of criminal negligence with little or no jail time; or homicide, with a minimum sentence of 25-to-life. The jury could choose based upon rules clearly defined by the judge. But it couldn't really know the truth.

This truth came back to me at a recent gathering of welding manufacturers, where an update on fume litigation included a brief history of class-action lawsuits.

Ted Vorhees, a product liability and toxic tort litigator in the Washington D.C. firm Covington & Burling, characterized lawyers during the Civil Rights Movement of the 50s and 60s as visionaries who pioneered use of the judicial system to foster societal change that legislators wouldn't touch. They righted wrongs, uplifted the oppressed, forced the government to do its job. Lawyers as the social conscience.

The next decades brought big tobacco trials and the large Superfund environmental cases. Tort lawyers refined the class-action system to crusade for little people hurt by big businesses. Lawyers as Robin Hood.

By the 1990s, the discipline was fully developed — a repeatable system with well-defined steps and tactics. If you had the financial backing, you could identify a cause, advertise for victims to come forward, and run a legal campaign of attrition until the plaintiff either offered a big settlement or lost its final appeal in court. Think lead paint, asbestos and silicon breast implants. Lawyers as entrepreneurs.

Today, Vorhees says, class-action lawyers behave more like a plutocracy — a wealthy ruling class waiting to pounce on any company whose product is connected to the negative health or welfare of its users. He places fume litigation in this category.

In the end, the question isn't whether Mn fumes actually cause Parkinson's; it's whether that's the position that wins the game. Either way, there will only be one true winner: the lawyers.

You can avoid playing games. You can convince your customers to spend wisely on the right kind of safety gear — and the right amount. You can talk to them about providing training and making sure their employees take it seriously.

When you do that, you protect not only yourself and your suppliers, but also your customers and their employees.

That's the truth that matters.