Those Big, Bad, Trial Lawyers

Richard Mourdock and Mike Pence have been having some problems the past couple of days trying to downplay their enthusiastic participation in the GOP’s War on Women–explaining that they really, truly love female incubators…er, women. (We just need to remember why their God put us on this earth…)

So it may be timely to remind ourselves that the War on Women (and its attendant dishonesty) isn’t limited to matters of reproduction.

For example, I see where the Romney/Ryan ticket is explaining its lack of support for the Lilly Ledbetter Act by claiming the legislation isn’t really about equal pay for equal work. No sireee. It’s just an effort to enrich those awful, terrible, liberal trial lawyers.

A couple of days ago, on ABC, Sen. Marco Rubio (R-Fla.), a leading Romney surrogate, argued, “[J]ust because they call a piece of legislation an equal pay bill doesn’t make it so. In fact, much of this legislation is, in many respects, nothing but an effort to help trial lawyers collect their fees and file lawsuits, which may not contribute at all whatsoever to increasing pay equity in the workplace.”

Paul Ryan, Romney’s running mate, said something very similar last week, criticizing the proposal as being little more than “opening up the lawsuits and statute of limitations.”

Romney allies have justified their opposition to the Lilly Ledbetter Act on these grounds for months. Pete Hoekstra, who is running for U.S. Senate in Michigan, called the Lilly Ledbetter Fair Pay law “a nuisance.” Another Romney surrogate said the law is little more than “a handout to trial lawyers.” Wisconsin Gov. Scott Walker (R) agrees–of course, he approved and signed legislation repealing Wisconsin’s equal pay law, so that shouldn’t come as a surprise.

There’s just one little problem with this effort to pretend that their problem isn’t with women getting treated equally. As it happens, trial lawyers–no matter how clever–cannot collect a fee unless and until they win the case.

Let me put this in language even non-lawyers will understand. Trial lawyers generally take cases on contingency. That means that unless they win the case, neither they nor the client will see a penny. Contingent fee arrangements, whatever their defects, give people access to the justice system who could not otherwise afford a lawyer. Contingent fee arrangements also provide a powerful incentive to lawyers to take only “meritorious” cases–no lawyer in his right mind wants to spend months or years on a case that’s a likely loser and won’t pay a dime. (Even when the lawyer thinks a case is very solid, there is always a substantial risk of losing. As I used to tell my clients, going to trial is always a crap shoot, no matter how strong a case you think you have.)

So–if we follow the argument being made by the Romney camp, they oppose the Lilly Ledbetter Act because lawyers who win cases–by proving that their clients were denied equal pay for equal work–will make money.

But they aren’t against equal pay for women. No siree. If you want to give all your employees who are doing the same work the same pay, why that’s fine. But if you don’t, you shouldn’t have to worry that the big bad trial lawyer will come after you.

They aren’t against equal pay for us girls. They’re just against providing a remedy to those of us who get shafted.

Just like they aren’t for rape. They’re just against allowing a woman who gets pregnant as a result do anything about it.

They may not be humane (or even human), but you have to give them credit: in this, at least, they’re consistent!