California Initiatives

Regular readers of this comment will know that Californians got to vote on three ballot initiatives last Tuesday — Props 200, 201 and 202 — that came down hard on lawyers. “The tough 200’s,” we called them. “The terrible 200’s,” the lawyers called them.

The goal, of course, was not to harm the lawyers, any more than the goal of Automatic Teller Machines was to harm human tellers. Half my friends are lawyers. The goal was to make life better for NON-lawyers.

Not surprisingly, the lawyers won.

On Prop 200, which RAND estimated would have cut auto insurance premiums dramatically . . . and which would have provided far better protection to the worst-hurt crash victims . . . the lawyers won 65% of the vote. (They ran millions of dollars of advertising claiming that rates would go UP 40%.) They thereby succeeded in hanging on to the $2.5 billion a year that they take from the California auto insurance system.

On Prop 201, which would have done at the state level what Congress overwhelmingly did federally — discourage extortionate class-action securities suits while leaving the door wide open for those with substantial grounding — they won 60% of the vote. (They ran ads likening Seagate Technology’s Alan Shugart with Charles Keating, convicted felon — never mentioning that anyone who had bought Shugart’s stock around the time of his alleged transgression would, by now, have about tripled his money.) A few law firms that specialize in these suits thereby succeeded in hanging on to the several tens of millions of dollars a year they make from these suits. (One such lawyer contributed $2 million to this effort — peanuts, for him.)

On Prop 202, which would have limited a lawyer’s contingency fee to 15% when an acceptable settlement offer was made within 60 days of the initial demand letter, they won 51.4% of the vote; we got 48.6%. They ran ads claiming that lawyers would cease to work on contingency if Prop 202 passed — they’d all quit, presumably, and become gym teachers.)

It was not a great day for democracy, because — as usual — the electorate was not presented the facts objectively and given the opportunity to make an intelligent choice . . . a quaint notion of how these things should work. (Our ads weren’t perfect either. They were, for the most part, humorous jabs at lawyers in general, the only way we could afford to attract people’s attention, hoping they would learn the details from the “free media.”)

Of course, the Founders never meant for laws to be made by referendum. The idea was to elect capable representatives to do most of the thinking for us. But when it comes to measures that could adversely impact lawyers, legislators — mostly lawyers themselves — have proven to be only human. Which is to say they put their own interests first.

Tomorrow: F. Lee Bailey, Selfless Champion of the Innocent and Oppressed