WSJ: The Senate's Lawsuit Factory - Trial lawyers use a controversial case to undermine the arbitration system
Jul 22, 2011

WSJ Journalist Kimberly Strassel discusses how the course of the alleged rape case of former Kellogg, Brown & Root worker Jamie Leigh Jones exemplifies a "textbook trial lawyers style" in which lawyers use congress to publicize certain cases and change laws to their liking.

The Wall Street Journal
JULY 22, 2011

Somewhere, in some secret drawer at Tort Bar Headquarters, is an instruction manual labeled "How To Wring Legal Jackpots Out of Congress." It reads something like this:

1) Identify a law or regulation that prevents trial lawyers from cashing in. 2) Identify a "victim" of this law or regulation. 3) Get congressional allies to turn said victim into a cause célèbre. 4) Use ensuing moral outrage to get the law or regulation changed. 5) Buy a yacht.

It is to the trial bar's credit that it manages to pull this formula off again and again, even in today's more tort-reform environment. Consider Jamie Leigh Jones.

Remember Ms. Jones? She's the former Kellogg, Brown & Root worker who in 2007 made the explosive claim that she'd been gang-raped by colleagues in Iraq's Green Zone. Pro-litigation politicians and lawyers seized on her story as an excuse to make it easier to sue federal contractors. And now comes the end of the tale: A Houston jury recently dismissed Ms. Jones's claims, unanimously finding (in one day's deliberation) that she had not been raped or defrauded by her employer.

The Jones case played out in Washington in textbook trial-lawyer style. In recent years, one of the tort bar's top priorities has been getting rid of mandatory arbitration clauses in employment contracts. Those clauses require employees to settle disputes with employers in front of a neutral arbiter. Plaintiffs' attorneys hate the efficiency and fairness of this system, since it denies them a chance to clog up courts and win giant punitive damages.

Ms. Jones, meanwhile, was as perfect a "victim" as a lawyer could wish. In 2005 she went to Iraq, working for KBR, a government contractor and former subsidiary of Halliburton. She claimed that within a few days of arrival she was drugged, raped by colleagues, and imprisoned in a shipping container. Her attack had been so violent, she alleged, as to require reconstructive surgery to her chest and intense psychiatric treatment. The kicker: Ms. Jones had a contract clause that appeared to require her to seek redress through arbitration, rather than the courts.

Minnesota Sen. Al Franken-who in 2008 received some $900,000 in campaign contributions from lawyers, more than any other category of donors-turned the case into a centerpiece of his first months in office. Joined by Senate Judiciary Chairman Pat Leahy, Mr. Franken highlighted Ms. Jones in hearings and press conferences, bemoaning that a company was "robbing" her of her "day in court."

News organizations sensationalized the case, presenting Ms. Jones's allegations as fact. National Public Radio declared "Jones had been vaginally and anally raped, repeatedly. By how many men, she's not sure." ABC's 20/20 did an exposé, playing up Halliburton and its Dick Cheney ties. Public Citizen ginned up a letter-writing campaign to protest "Halliburton's arbitration trap," while the American Association of Justice-the trial lawyer lobby-highlighted Ms. Jones's case as an example of "how powerful corporations use forced arbitrations to evade accountability."

Here's the thing: Ms. Jones was getting her day in court. In 2008, before Mr. Franken had even won election, a federal judge ruled that sexual assault fell outside the scope of standard workplace complaints and therefore was not subject to arbitration. In October 2009, an appeals court agreed. These rulings were in fact the basis of the civil case Ms. Jones lost this month, in which she was claiming $145 million in damages.

None of that stopped Mr. Franken from spinning her case to get sweeping legal changes in aid of his trial lawyer benefactors. He began pushing a Senate measure prohibiting defense contractors from requiring employees to use arbitration to resolve a range of complaints. The Jones story cowed a number of Republicans into voting for the amendment, which passed 68-30 in late October 2009.

The 30 Republicans who voted against it were targeted as rape apologists, the subject of a murky website that appeared under the name "Republicans for Rape." Local newspapers denounced their "no"-vote senators. The Franken crowd, happy to press this advantage, began pushing for the Arbitration Fairness Act, a bill that would ban arbitration clauses in all employment cases-not just those of defense contractors. This was the trial bar's real aim all along, and only a hot 2010 election year denied them a victory.

It isn't clear whether Ms. Jones will appeal, though the Houston jury was clearly disturbed by grave inconsistencies in her story and the evidence, as well as her self-promotion-including her rounds on the media circuit, a book and film deal, and a starring role in the new pro-trial-lawyer movie "Hot Coffee."

Even Mr. Franken is these days arguing that his campaign was "never about one court case." In April, he doggedly reintroduced the Arbitration Fairness Act (though, notably, his press release made no mention of Ms. Jones). He will undoubtedly also be pressing for his contractor amendment to be renewed as part of the defense appropriations process.

Republicans have seen the trial lawyer play frequently enough to recognize it. Yet in 2009 many of them succumbed again, putting at risk an arbitration system that has done wonders to curb frivolous litigation and is at the heart of their own tort-reform beliefs. Let the Jones case be yet another lesson.

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