American (Defense) Bar Association

I am an ABA member. While not the same as saying, “I am Spartacus,” it does carry with it the potential for the scorn of many plaintiff lawyers, who see the ABA as a treehouse for the defense bar that lets us plaintiff types play with them a few times, but mostly pulls up the ladder and does whatever it is that the defense bar does in private.

I tell people that it's arguably worth joining to keep track of what these folks are up to, and that occasionally you get something worthwhile in a publication.

Well, maybe I've been wrong all along.

Every so often, I see something that makes me want to ask for my dues back. This time, it's a relatively small, but telling, editorial action in the latest issue of “Litigation,” the quarterly publication of the ABA's Litigation Section.

The Summer issue contains an excellent article by Gregory Joseph, who writes great articles for the National Law Journal and has his own Complex Litigation blog. Mr. Joseph has always struck me as a lawyer who thinks about jurisprudence and things like that more than how he can write an article to help out his clients.

That's true of the article in Litigation, which is a reasoned analysis of how federal courts have become  litigation hellholes for most plaintiffs.

I enjoyed the article, but I noticed an “Editor's Note” at the top of the article that made it darn clear that the opinions were those of Mr. Joseph and did not “necessarily reflect the views of the Section of Litigation or the Editorial Board” (that being Weaseltongue for “I don't like it but I don't want to ask around to get an actual consensus”). It struck me as odd that the ABA chiefs would take time to, in the words of Mission Impossible just before the tape gets all smoky, disavow all knowledge of his activities.

So I looked at the other articles in the issue to see if the ABA had been as careful with other pieces by other authors, and I discovered that Mr. Joseph's article had been singled out for this peculiar attention.

And then I noticed that the great bulk of the law firms who provided authors were defense firms. And the two plaintiff lawyers wrote pieces on Lincoln's Second Inaugural Address and appellate mediation, relatively innocuous enough.

Does this mean that the ABA will not tolerate articles from a plaintiff lawyer? Well, possibly not.

But does it mean that the ABA saw fit to make sure its largely defense firm membership did not think it was endorsing anything as radical as continued access to federal courts? Well, yes it does.

I've heard the ABA moan that it can't get enough plaintiff lawyers as members.

As long as it feels the need to disavow anything vaguely in favor of plaintiffs, it ain't gonna.