I was surprised to learn the other day that many people don’t like lawyers. Were you aware of this? And, believe it or not, most of the ire is directed at plaintiff’s lawyers. I was a plaintiff’s lawyer for fifteen years and always marked the resentment up to mere jealousy.
But it may go deeper. When our President, imagining the thought process of the September 11 terrorists, says, “I guess, and assume, that they thought we were so weak, so feeble, so self-absorbed, so materialistic, that after September 11 we might file a lawsuit or two,” he’s making a hidden dig at plaintiff’s lawyers. I may be mistaken, but I think when George W. Bush mentions “legal reform,” he’s not talking about increasing access to the courts or handcuffing defense lawyers. There are unending complaints about lawsuits against McDonald’s, tobacco companies, insurers of old asbestos companies, and gun manufacturers.
I have no problem blaming individual lawyers. After all, there 900,000 of them in the U.S., and the worst ones will do a lot of stupid things. Whenever someone complains about the legal system, a lawyer was, at some point, an enabler. On the other hand, lawyers are frequently made scapegoats for bigger problems or interests with other agendas. We should fix the system, not its results.
Problems With the Legal System Usually Don’t Last Long
The legal system does a surprisingly good job of its own in fixing problems. Take frivolous lawsuits, for example. Why would a lawyer file a frivolous lawsuit, especially one working on a contingency? Answer: because the case has a profitable nuisance value. But how big a problem is that? Lawyers are expensive but settling a case to avoid hiring a lawyer can’t be a big economic problem. But what if the defendant is a big company and has to face such suits repeatedly? Economic common sense would dictate that the company would stop settling to deter such suits. The gang that sued McDonald’s for causing obesity didn’t get a dime. Will other lawyers rush to follow? Why would they? Maybe some allegedly frivolous suits really aren’t frivolous. I wouldn’t take it on faith that a suit is frivolous if the defendant settles it, especially if they repeatedly settle the same claims.
Look in the criminal area at the effect the U.S. Supreme Court’s Miranda decision had on police interrogation and investigation. Opponents back in the Sixties said the decision was tantamount to selling out to criminals, that once the accused could ask for a lawyer, the police would lose their ability to interrogate. The police adapted. Getting defendants to confess in an atmosphere without coercion is more difficult, but police have become expert at it.
In contrast, groups who blame lawyers for gumming up the system sometimes simply refuse to adapt. The PGA Tour and the U.S. Golf Association could have set up standards for rare situations when sufficiently talented golfers are unable to walk the golf course. Sure, someone might have sued over the rules, but by controlling the process, the Tour would have had a better chance than the position it took in the Casey Martin situation: claiming that competitive golf requires walking, then griping that judges were sticking their nose in the Tour’s business. Professional golf lost and looked bad doing it.
People Aren’t Shoving Their Pelvises at Scalding Coffee
If we are serious about legal reform, we have to do more than say, “It’s the lawyers’ fault,” and make it difficult or unprofitable to file certain kinds of lawsuits. For example, for all the moaning and groaning I hear about giant punitive damage awards, no one mentions how infrequent large awards are, and how often judges cut awards to a small multiple of actual damages. There are statistics on these things and if we don’t use them in our discussions, we will get nothing better than a partisan argument.
Likewise, these issues don’t have good guys and bad guys, so we have to get beyond the rhetoric that both sides throw at each other. Yes, there are some really wealthy lawyers out there, and some of them are really arrogant. (Personally, if I needed a lawyer, I’d want a wealthy, arrogant one.) But they’ve also provided legal access to people — some of whom have been horribly wronged — who wouldn’t otherwise have access. Besides, the wealth and political power of all the lawyers in the world is an anthill compared to the interests that oppose plaintiff’s lawyers on “legal reform” issues.
If You Want to Fix Saddam Hussein’s Wagon, Make Him Hire Some Lawyers
A society’s openness is defined by its ability to accept dissent. I consider that the most obvious difference between our government and Iraq’s. Our system of civil litigation is a form of dissent, with plaintiffs and their lawyers dissenting from society’s result, trying to change it. No one was very happy with the result of the 2000 Presidential election, with its month of legal maneuvers and both sides claiming the other was gaming the system. But how would such a thing play out in Iraq? Granted, Saddam Hussein got 100% of the vote with 100% turnout, but it would be impossible to reconcile Iraq’s form of government with challenging a result or ruling contrary to the party in power.
Likewise, look at the Paula Jones case. (Wow, considering that the Democrats are generally considered the pro-lawsuit party, they’re the one who take it on the chops in these cases with political undertones.) Could a private citizen sue Saddam Hussein? What would happen to him and the lawyer who brought such a case? If Hussein asked to have the case postponed until it was more convenient for him to defend, would any court rule against him? If he considered the lawsuit a personal embarrassment, what would he do to prosecutors and other opponents? (Or, more accurately, what wouldn’t he do?)
So if you can’t find it in your conscience to keep an open mind about our legal system, unleash our swollen ranks on Baghdad. They could do more to destroy Hussein and the Iraqi system than 200,000 troops. Besides, from the jokes I get in chain e-mails, it sounds like the public would accept greater casualties among lawyers than among soldiers.