'Enlightened conversation': Tom Lambert recalls trial lawyers' victories for consumers.

Editors, Note.. Thomas F. Lambert Jr. was never a trial lawyer and never served as ATLA president, but his name is as familiar to association members as the name of any other hero of the trial bar. In 1955, Lambert was hand-picked by Roscoe Pound to succeed him as editor of the NACCA Law Journal, a semiannual publication of ATLA's precursor, the National Association of Claimants' Compensation Attorneys. Lambert started the NACCA News Letter in 1957 as a supplement to the Law Journal. The News Letter evolved into the ATLA Law Reporter, which is published 10 times a year and is sent to association members as a membership benefit.

He is now perhaps best known as the author of "Tom on Torts," his distinctive and passionate column appearing in the Law Reporter.

Lambert's illustrious career has included serving as a trial counsel at the Nuremburg Trials after World War II and as a professor and dean at several law schools. At 81, he currently teaches courses in products liability law and advanced torts at Suffolk University School of Law in the city of Boston.

TRIAL Associate Editor Julie Gannon Shoop visited with Lambert in his apartment overlooking the Charles River, where he spoke with characteristic passion and pride about the past, present, and future of tort law and the trial bar.

Tell me about the early days of the

NACCA News Letter.

There were just two of us, Charles Ed Clark and myself. He was a professor of workers' comp at St. Mary's University Law School in Texas. He and I were hired together. We divided the work up. I think I took torts, admiralty, and aviation, and he had railroad law and workers' comp.

Many of the cases that appear in the

Law Reporter come in from members.

Did the cases come from members

then, or did you have to go out and

look for cases?

We tried to read every published opinion in the national reporter service in which a plaintiff won, at least where it involved personal injury or wrongful death.

So we'd go through all those and then make the judgment calls, in terms of the amount of space we had, about what we should leave out. I think originally we had 48 pages. Certainly it soon reached those dimensions.

So you did an awful lot of reading

back then.

Yes, I did. I'd read on planes. I did a great deal of traveling in those days. About all it took to get me to go inflict a talk on some group was a five-cent stamp.

In the first issue of the News Letter,

you said its purpose was to "make society

a little better legal residence for

the millions who are injured every

year in our mechanized society." You

clearly meant the publication to be an

agent of change. Has the Law Reporter

fulfilled this mission?

I would say substantially. If I were a trial lawyer today in active practice - whether for the defense or for the plaintiff's side - I would regard the ATLA Law Reporter as one of the most valuable sources of information on current developments. For teachers of torts, I would think it would be a great help to them. I wish that when I began teaching torts in 1940 had been available.

First, there are editors screening the advance sheets. Then there are lawyers who have a natural instinct to share their successes, and if they win cases, they send them into the editors. So the ATLA Law Reporter provides access to verdicts and settlements from all over the country that often cannot be found elsewhere.

Is the mission of the Law Reporter any

different today?

I think the aims may be increased in number, but I don't think it has changed its main mission, which is to be like a window and show the practicing trial lawyer what's going on in the field. Lawyers are all so darn busy. They don't have time to read. So the Law Reporter says to them, "He who runs can read here."

Your column, which has been a prominent

feature of the Law Reporter for a

long time, doesn't read like typical legal

writing. I've even heard people call

you the poet laureate of ATLA.

I always remember the story of the old barrister who told his young associate that the law was so dry that unless he could eat sawdust without butter, he could never make a go of it. But I love the idea that if where is any rule that says legal writing has to be dull, let's do our darnedest to shatter that rule and try to make legal prose into enlarged and enlightened conversation.

Imagery is what we need, I think, not only in legal writing but in any kind of communication. It's easier to see a picture, it's said, than to do a sum.

So when former ATLA President Bill Colson, for example, in a summation on how much a good mother is worth, says, "God didn't want to be everywhere, so he made mothers," that gets your attention.

When you're looking at the problem of what should be the rights of an adoptive parent, you might tell this story, which I told in one of my columns. A mother is cuddling her adopted child in her lap, and the child says, "Mommy, do you love me as much as you do the others?" And the mother says to her, "Not flesh of my flesh nor bone of my bone, but nevertheless my very own. Don't you forget for a single minute, the others grew under my heart, but you grew in it." That is moving when you hear it.

It's beautiful.

I've had trial lawyers write me and tell me how useful that story was.

Have a lot of readers responded to

your work?

Most readers don't respond, whether they like it or hate it or it helps them or hurts them. They don't find time to respond. Occasionally I get letters, or I hear from a judge, or some part of my writing appears in a court opinion. That's very moving to me.

I've had letters from good people correcting my grammar, or telling me that a case that I cited had been overruled 20 years before. If I didn't get them, I might not be able to correct those things. So I'm grateful for those, too.

What do you try to accomplish in

writing a column? Have your goals

changed over the years?

I don't think they've changed from the beginning. At one time I came up with a list that I called the Seven Pillars of NACCA, and I've tried to develop and promote those in my writing.

One of the pillars was to preserve and cherish the dynamic element of the common law. The common law is always in the process of becoming. It's an organic thing. It's not a cadaver.

I've tried to develop the idea that torts have birthdays. Five minutes before the birthday, there was no such cause of action, no such remedy. Now there is such a remedy. Most of the time you can't see this happen. The change is imperceptible. It grows like a coral reef.

But every now and then, by gosh, the change is visible, avowed, and volcanic. It's like seeing on television a whole island erupt in the Pacific Ocean. It wasn't there, and now there it is, before your eyes. In that sense, torts have birthdays.

So I've tried to cherish this idea and keep it alive and preserve the dynamic clement of the common law. If the 12th century can have its new precedents, why can't the 20th century? I love the idea that every truth begins as a broken precedent. In 1941, the world was flat; Columbus, J., dissenting.

I think that's the thing I cherish most: the dynamic element of the common law.

And your role as a columnist

is to create a record of that

change?

To illustrate it, to document it, to make the case that this is true.

Can you give me another example

ample of one of the Seven

Pillars?

The preservation of the civil jury is another one. On the jury you have the butcher, the baker, the candlestick maker, the colonel's lady, and Judy O'Grady - a cross-section, a slice of the community.

You can put the objective of tort law in very fancy language, but I think what it comes down to is to allocate losses in accordance with the community's notions of fair play. Then the question becomes, Who is better fitted to formulate and apply community notions of fair play than the civil jury, that slice of the community, as compared with a single judge or a bevy of administrative commissioners?

Say you have a whiplash case. You might get a judge who thinks the whiplash case is a fake claim, that it's a condition precipitated by an accident, nourished by greed, and cured by a greenback poultice. On the other hand, you might get a judge whose wife has genuine neck pain. He watches her serving the scrambled eggs and bacon or watering the flowerpots, moving around like a Frankenstein, so to him it's real. But why should you be remitted to the tender mercies of either one?

The judge comes to that job by narrow professional and personal experience. When you compare that with a jury of 12 people drawn from different walks of life, who is better fitted to formulate and apply the community's notions of fair play?

Since we're celebrating ATLA's 50th

anniversary, let's talk a little about

what the association has achieved in

this half century. What do you consider

ATLA's greatest accomplishments

so far?

One of them, I think, is elevating the reputation of the trial lawyer. We had a rather disreputable image in the beginning, largely because of our critics, who portrayed us as ambulance chasers who lowered the ethical standing of the trial bar. On the other side were insurance industry and business lawyers - the elite, those who wore the corporate collar and the cutaway coat. They were seen as the ethical exemplars of the bar.

The first great accomplishment of NACCA/ATLA, in my opinion, was to help trial lawyers develop genuine respect for themselves. You can't expect anybody else to respect you until you respect yourself. We were not dirt - far from it. I've tried to outline the great accomplishments of trial lawyers in my writing and speaking. As I've said before, the trial lawyer is the shield and the buffer of the individual against overweaning, overmastering power, public and private.

There are many great professions in the world - theology, medicine, maybe even teaching - but surely, in a way, the greatest is the law. We have the nondelegable responsibility of housebreaking and domesticating and authenticating power. That's what makes our profession unique.

The trial lawyer is the only person between you and the draft board. The only person between you and the IRS. The only person - and do our members know it! - between you and General Motors. The only person between you and the state, between you and the county, between you and the crown.

But you're saying that trial lawyers

did not see themselves in these noble

terms 50 years ago?

I'm satisfied that they did not. Why? Because they were all alone.

Suppose you were trying to make inroads on some governmental immunity, or you where trying to bring an action against family member and you were met with the stone wall of intrafamily immunity. You were like an infant in the night crying for the fight with no language but a cry. All alone.

Well, now you have the power of the company behind you. You can call Exchange Plus and squeeze its tremendous resources. You can call fellow ATLA members who have depositions of adversarial experts, who have pleadings, who have trial briefs and appellate briefs, and they share all this with you. You're not all alone anymore. So that's been an immeasurable accomplishment of the organization on the institutional level.

But originally, as I say, we were the disreputable ones. We had to win our own self-respect and untarnish our image. We've done that, and I think it was our first great accomplishment. Trial lawyers who come along now inherit this fair name.

What about achievements in the law

that have benefited wrongfully injured

people? How have association members

helped shape tort law for the better?

We have had members who have demonstrated to the world that they are as much interested or more interested in the battles of life than in the spoils.

Let me give you an example. There was a young man named Theodore Lockyear Jr. from a small town in Indiana who got the first crashworthiness case. It involved a Chevrolet station wagon that had an X-frame instead of a box frame, so it was a lot more vulnerable in a side-impact collision.

Ted represented the widow and family of a doctor who was killed in one of these crashes. The doctor had a green fight in his favor, and some chowderhead blows the red fight, hits him in a side impact, and kills him.

Young Ted Lockyear's theory was, I'm not blaming General Motors for the crazy driving of this chowderhead. On the other hand, every automobile manufacturer knows that inevitably its cars are going to be involved in collisions. It must design its cars to have in view their expectable environment of use.

His submission was that within the state of the art, the doctor's car could have been equipped with a box frame. GM could have made his car crashworthy, but it neglected to do it. So his contention was, I'm holding you responsible for what turned out to be a fatal injury. If you had used care to make this vehicle crashworthy, the doctor would have walked away from the accident, or at least it would have been survivable. But instead, a survivable accident was turned into crepe on the door, the ultimate trauma of death.

The trial judge threw out the complaint, and Ted prepared and financed the appeal. The Seventh Circuit affirmed the lower court's dismissal 2-1, with a powerful dissent.

Ted lost that case. But he wrote me a note that said, "I lost the battle, but this war will be won." He enclosed his entire file on the case and asked me to make it available to other ATLA members. This selflessness is the real secret of ATLA.

Others took up the battle, and it was won. Today, I don't think there are more than three states that have not yet embraced the crashworthiness doctrine.

What other positive changes in tort

law have ATLA members helped bring

about?

There has been, generally speaking, a liberalization of tort law. The old theory was that you only needed to know one thing to bring a case: Was the defendant negligent? And yet, in practice, that theory wasn't true when ATLA began in 1946.

Back then, a man could be as negligent as all get-out and still not have to pay a penny because his conduct was immunized. This meant that by virtue of the status of the defendant, or his relationship to the events, he was exempt from liability.

We used to have immunities like other people had mice - 57 varieties. One was immunity of the government. Two hundred years ago we kicked the king out, then we transatlantically imported this immunity of the government and all its subordinate entities.

We also had charitable immunity. The leading case was in Massachusetts, where a doctor cut off the wrong leg of a patient. The court held that what he did was wrongful, but he was shielded by charitable immunity. But when charity does good in the wrong way, it should pay.

We also had occupier's immunity. The occupier of a residential or commercial premises would not be liable to a trespasser. He wouldn't owe much of a duty of care to a licensee, permittee, or social guest. He had just a very limited duty to abstain from willful, wanton, reckless misconduct.

Then we had the immunity for psychological injuries' You'd be liable if you negligently scratched a person's hand, but not if you scared him to death. It was bad policy, bad psychology, bad medicine, and bad law.

Then we had the immunity of a product supplier, who would not be liable to the ultimate consumer. The manufacturer - the fellow who negligently designed the product, negligently constructed it, negligently packaged it, or negligently failed to warn or give instructions - would be liable only to the immediate buyer. Of course, the immediate buyer is not going to be the ultimate consumer. But the person who is physically endangered by defective products is the ultimate consumer. The manufacturer would not be liable to him or her, but only to the middleman. That rule of immunity lasted far too long.

So you could look upon liability as a stream or a river, but in that river there were many, many islands of immunity. Nobody has done as much, it seems to me, as ATLA and its professional membership to bring about through successful litigation a repudiation, a limitation, a shrinking of these immunities. Whereas immunity breeds irresponsibility, liability induces preventive vigilance.

One of the great axioms of ATLA is that a fence at the top of a cliff is better than an ambulance in the valley below. The primary purpose of tort law is to compensate for harm, but it has an auxiliary purpose: a deterrent function to discourage antisocial misconduct, to prevent the accident. Accident prevention is even better than accident compensation.

What about the converse of all this?

Have there been setbacks for the

wrongfully injured as well?

Certainly there have been many retreats, and there may be more to come. For instance, right now the anointed institution known as the American Law Institute is in the process of changing the basis of products liability with respect to design defects and failure to warn from strict liability back to negligence. That means a sharp reduction in consumer protection.

The case for strict liability is simply this: If it takes a score of 100 to pass, you're going to try harder than if all it takes is 70 to pass. That stands to reason. Negligence says if you use reasonable care, you're off the hook. Strict liability says unless you use super care, you're going to be on the hook. We get a larger measure of consumer protection from strict liability than we'd ever get under negligence doctrine.

If there's one principle that is more imperative than all the others, it's "Thou shalt not ration justice." You must give the consumer his due.

What do you think the next 50 years

will bring for members of the legal

profession?

If people were wiser, I think we'd try to make life less complicated over the next 50 years. But if we don't and life gets more complicated, then I assume that machines will hold increasing tyranny over our lives, which means that life gets be more beleaguered and besieged by risk. As the man says, we can walk on the moon; but not in the Kmart parking area or in Central Park at night.

We live in a risk-infected society, and as our population increases and life gets more complicated, I suppose we'll get more risk-infected. I don't see any less of a need for lawyers when trauma is inflicted in the future.

I can't imagine the kind of world or universe in which trial lawyers would be dispensable. We will become increasingly necessary because the great function of the trial lawyer is not just sparring with opponents in the adversarial process, it's accident prevention.

And now, of course, lawyers are also the great public policy counselors at all levels of government. As Jeremy Bentham said in the 19th century, "The law is made not by the judge alone, but by the judge and company." I believe that very prominent among that company is the trial lawyer.

I sometimes wind up a little talk this way: Lawrence of Arabia was a dashing, heroic figure, especially when seated on a camel. So while we are giving two and a half cheers to our jurisprudential Lawrences, let us give half a cheer to the camels of advocacy, the trial lawyers, who carry the judges to the straighter road on the higher ground.

What advice do you have for ATLA's

leaders about how the association can

continue to shape tort law in ways that

benefit consumers?

I would say basically we should continue doing what we have done when we were at our best. We, like all other sons and daughters of men and women, are not always at our best. At our worst, we have Lucifer's sense of pride, and we pursue the white light of publicity. We should be people of vision, not people of visibility.

All our members should do what our Harry Philos have done: like John the Baptist, stride this land from one end to the other, crying "Repent! Repent!" - and make safety the civil religion of us all.