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.
