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No Easy Verdict on Thompson The Lawyer
Cases Indicate Willingness to Defy GOP Orthodoxy

By John Solomon
Washington Post Staff Writer
Thursday, July 26, 2007

Before he was elected as a tough-on-crime U.S. senator from Tennessee or played a New York prosecutor on TV's "Law and Order," Fred Dalton Thompson worked as a lawyer who argued against the government's authority to regulate drug paraphernalia or to search a boat packed with 14 tons of marijuana.

Once, two decades ago, he urged that more witnesses refuse to testify before grand juries by invoking their constitutional right against self-incrimination, boasting that "I start on the assumption that my client will not testify." And over the years, lawsuits he filed helped a state worker win reinstatement to her job while exposing a parole bribery scheme and won money for the family of a Marine pilot killed by a helicopter blade when the family could not sue the Defense Department.

Thompson's work as a lawyer from the late 1970s to the early 1990s is one of the least explored aspects of a career that has taken the Tennessean with the imposing frame and deep voice from early fame as a Watergate lawyer to a Senate career, Hollywood stardom and now the brink of a campaign for president.

His work representing white-collar criminals, drug defendants and lawsuit victims has given Thompson an affinity with one of the Republican Party's perennial targets, trial lawyers, and he carries that connection with him even today as he prepares to seek the GOP presidential nomination. It also helped shape a view on lawsuit reform that has frequently put him at odds with his own party.

"We viewed him as someone we could work with, particularly given he had been an advocate in court for individuals and corporations, and had an innate understanding of what went on in a civil jury," explained Linda Lipsen, the chief lobbyist for the American trial lawyers lobby group that Republicans often pilloried for opposing tort reform during the 1990s.

Unlike many Republicans during the 1990s, Thompson easily collected large sums of political donations from lawyers during his Senate career -- more than $1.5 million over eight years. The trial lobby's political action committee gave him maximum $10,000 donations during each of his two Senate campaigns.

Aligning himself with trial lawyers was another seeming contradiction in Thompson's varied career -- a Republican who succeeded in Hollywood, a former lobbyist who lives in Northern Virginia, now positioning himself to run for president as a Washington outsider.

In the Senate, Thompson routinely voted against legislation aimed at shrinking the size of fees that attorneys could collect and rejected limits on medical malpractice lawsuits, bucking his own party. Most Republicans supported such reforms, arguing that trial lawyers routinely filed frivolous lawsuits or won unnecessarily large awards that drove up the cost of insurance and products.

The American Conservative Union gave Thompson a lifetime score of 86, placing him in the middle of Republicans it rated. The group noted that he voted against two of the four lawsuit changes the group supported.

"When you are taking a look at Thompson as a conservative," said ACU Chairman David Keene, "the negatives come down to plowing around with John McCain on campaign finance and a general sense that he sided with trial lawyers because of his background."

Keene said Thompson's position on tort reform is "something someone who favors another candidate or isn't very enamored with Thompson might raise more as an excuse than a reason" not to vote for him.

Officially, Thompson and his aides declined to answer questions about his legal work on the grounds that he is not a declared candidate. Privately, his advisers said they are acutely aware that GOP opponents could try to paint Thompson as too liberal, based on his legal work, his support from the trial lawyers' lobby and his votes on liability legislation that conflicted with those of most Republicans.

"There will always be a concern that he wants to be the leader of the cobra party, and he was, for a while, a mongoose," said Grover Norquist, head of the Americans for Tax Reform, which supported tort reform and is influential in GOP circles. "He needs to articulate not where he was while practicing law under the tort laws at the time but where he think those laws should go now."

Thompson recently sought to head off attacks, posting a statement on a conservative blog explaining his opposition to federal limits on malpractice lawsuits by saying it is a matter best left to states.

"In the past, those who want to solve this problem have tended to ignore our Federalist tradition," Thompson wrote last month. "They've driven right past their statehouses to their airports and flown to Washington to ask for national legal remedies. Fortunately, now we're seeing that states can take effective action themselves."

Thompson cited as a model he could support the 2003 law in Texas that imposed state limits on malpractice lawsuit awards, which Norquist regards as "the gold standard of state-level tort reform."

Advisers say Thompson has long thought that the federal government ought to be as small and unintrusive as possible, and should leave solutions to local problems to local government except in cases such as terrorism, when a national effort is needed. He has held that view firmly even in the face of politically popular legislation, such as the time Thompson opposed requiring states to adopt federal sentencing guidelines to keep their crime-fighting money.

"State sentencing for state crime is a state matter," he argued in 1999. His views sometimes left him at the lone end of 99 to 1 Senate votes.

Thompson defied Republican orthodoxy almost as soon as he arrived in Washington in 1995 as a freshman senator. Having just regained control of Congress, the party was pursuing the agenda it had set out in the Contract With America.

That included proposals to limit the ability of lawyers to bring lawsuits, cap the size of damages that could be won and limit the fees that lawyers could earn in civil cases. "This is the only provision in the Contract With America that goes against our basic philosophy," he declared at the time.

Thompson broke with his party during the early debate to vote against several provisions. One would have required attorneys to tell clients that they were entitled to an upfront estimate of their legal fees and another that would have limited attorneys' fees.

He eventually joined Republicans in approving moderate new restrictions on product-liability lawsuits -- but only after several tougher provisions opposed by lawyers and consumer groups were stripped.

Thompson justified his vote on the grounds that products crossing state lines fall under the federal government's regulation of interstate commerce. But he continued to strongly oppose efforts to put limits on medical malpractice awards in states, at times citing stories of victims such as a 5-year-old girl who died after having her tonsils taken out.

In 1998, Thompson voted against a plan offered by Republicans that would have limited to $250 per hour the amount that lawyers could charge in tobacco lawsuits. He voted against similar curbs for lawyer fees in death-penalty cases, medical-malpractice cases and drug-patent litigation. He viewed such government limits as interfering with local commerce.

Such views were shaped earlier in his career.

After graduating from Vanderbilt University law school in 1967, Thompson worked briefly as a federal prosecutor. He gained fame in the early 1970s as the 30-something lawyer who helped Republican Sen. Howard Baker of Tennessee pursue Richard M. Nixon's misdeeds during the Watergate hearings. He then returned to Nashville to open a law firm.

In the late 1970s, he helped Marie Ragghianti sue to win reinstatement to her job as chairman of the Tennessee Parole Board and back pay in a scandal that exposed a parole bribery scheme that ultimately ended the career of then-Gov. Ray Blanton. The case was featured in a book and a movie.

Shortly before returning to Washington as a senator, Thompson helped the widow and son of a Marine who was killed when a blade came off a helicopter. The family was unable to sue the Defense Department, so Thompson went after the helicopter maker and won a settlement.

During his 1994 Senate campaign, Thompson ran on a staunch anti-crime platform that called for keeping repeat offenders in prison, enforcing the death penalty, abolishing parole and getting tough on juvenile offenders. That image was burnished in recent years by his role as no-nonsense district attorney Arthur Branch on the popular "Law and Order" TV show.

But earlier in his life, Thompson challenged the right of government to compel testimony or search property, according to a review of hundreds of pages of court filings, transcripts and contemporaneous news accounts.

In August 1981, Thompson, on First Amendment grounds, urged the U.S. Supreme Court to strike down an Illinois village's ordinance designed to protect children from marijuana by requiring merchants to get a license to sell drug paraphernalia or pro-marijuana literature. His client was a trade association of merchants who sold smoking goods, novelty items and magazines.

The justices unanimously disagreed, upholding the ordinance.

Thompson also lost a federal appeals case involving two defendants in a major drug case. In his appeal, he derided a U.S. Customs officer as "inexperienced" and tried to challenge that officer's right to search a boat on which 28,000 pounds of marijuana was found. The appellate judges disagreed, writing a detailed opinion supporting agent's right to search the boat.

At the Tennessee Trial Lawyers Association's annual meeting in 1980, Thompson suggested that more lawyers should consider having clients invoke their Fifth Amendment right against self-incrimination by refusing to testify before federal grand juries.

"We are to the point that I start on the assumption that my client will not testify and I have to be convinced that he should," he said.

Most of the time, Thompson's legal work earned him favorable headlines in his home state. In 1985, however, he was rebuked by a local judge for missing a drug defendant's trial to go on vacation in Paris, giving the client grounds for appeal.

The judge said he was "astonished that a lawyer with his experience and record would go traipsing off to Europe.

"Some lawyers need to learn that their personal plans aren't the only things that count in this business."

Staff researcher Madonna Lebling contributed to this report.

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