U.S. court rules invite harassment and extortion. Here’s one way to fix them. Our March cover story.
(Page 3 of 3)
How to explain the fact that virtually nobody but Elliott has questioned the power of every plaintiff to impose costs on every defendant before any judge has looked at the lawsuit?
First, some history:
Until about 75 years ago, wrote Elliott, “federal courts reviewed the grounds proposed for suit prior to service of a summons ordering someone to come to court to answer charges,” although the review appears to have often been conducted by court clerks, not judges, and perhaps to have been rather cursory.
It was the adoption in 1938 of the Federal Rules of Civil Procedure that quietly eliminated any semblance of initial judicial scrutiny of plaintiffs’ complaints. At the time hardly anyone seemed to notice the new rule—dressed up as a mere technical change concerning service of process—that handed over the government’s power to order people to respond to lawsuits to private plaintiffs with a financial interest in coercing settlements.
One reason for the lack of attention to this shift, Elliott wrote, was that as of 1938, the cost of filing an answer to a lawsuit was minimal. Nothing remotely like the elaborate discovery process that would gradually push the complexity and cost of litigation through the roof existed. Over time, wrote Elliott, like “the fish that does not see the water that surrounds it,” we came to see this as the natural order of things.
But in my view, perhaps the most important reason for our legal culture’s comfort with the status quo is that waste serves the interests of the most important players in the system, including both the corporate defense lawyers and the plaintiffs’ lawyers. After all, all that money defendants spend ends up in someone’s pockets. Even the companies that pay for most of this in the first instance, along with their in-house lawyers, may have a muted sense of outrage because litigation costs are passed on to all of us in higher prices and insurance premiums, and thus have little effect on profits—other than to increase insurers’ profits. And most consumers (and jurors) are at best dimly aware that the waste comes at their own expense.
As for the judges, many were once plaintiffs’ lawyers themselves and have become habituated to legal waste. Almost all would see as unwelcome tedium any rule change requiring them to read and think about every lawsuit at the outset. Indeed, Elliott suggested to me that “many judges sit on the motion to dismiss for long periods (sometimes years) and rather than decide difficult legal issues, many of them use the costs of discovery to coerce settlements.”
In addition, the pro-plaintiff slant of the rules has long been in tune with popular-culture portrayals of corporate defendants as wealthy malefactors who seek to deny justice to injured workers and consumers, and who are easily able to absorb litigation costs as routine business expenses. The fact that bogus lawsuits end up costing the general public many billions of dollars via higher prices and insurance premiums receives little attention.
IS THE IMBALANCE between plaintiffs and defendants unconstitutional? No and yes. Not many federal judges will be receptive to the idea that they have been unwittingly violating the Constitution in virtually every civil case for the past 75 years. But Elliott makes a strong case that the current rules do violence to our values and constitutional traditions.
His strongest argument comes from the Fifth Amendment’s requirement that “No person shall…be deprived of life, liberty, or property, without due process of law.” The rules effectively require civil defendants to spend money (a form of property) to respond to even the most frivolous lawsuits, with no process at all, let alone “due process.”
Elliott’s second argument is that the Constitution assigns the judicial power to the courts, and that, as a general principle, government power should never be delegated to private actors to enrich themselves at others’ expense.
His third constitutional argument is that a frivolous summons is an unreasonable seizure of the defendant’s person, because the government requires no evidence that the suit has a reasonable basis in law and fact before ordering the defendant to spend time, effort, and money responding. “The government shouldn’t give plaintiffs’ lawyers a free hand to conduct investigations using government powers when the government itself would have to show a neutral magistrate that it was acting reasonably to get the same information,” Elliott told me.
While this third point finds little direct support in Supreme Court precedent, it resonates with Justice Louis Brandeis’ assertion that “every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed,” violates the “right to be let alone.”
In theory, notes Elliott, the rule might be constitutional if it were accompanied by a requirement that plaintiffs whose lawsuits are found to be unreasonable eventually reimburse defendants’ attorneys fees and court costs, something which is done in all the world’s developed nations except Japan and China. But in practice, our legal culture has long been unwilling to require this, no matter how far-fetched the plaintiffs’ claims.
So the only hope for progress on this front is to screen out claims that are implausible on their face without requiring defendants to respond. No doubt this would make more work in the short run for judges and magistrates, though not, I suspect, in the long run. It might trip up a few deserving plaintiffs, though these could then appeal. But the alternative is less appealing still: standing idly by as thousands of people—who have done nothing wrong—founder in a sea of costly legal bills and frivolous court filings.
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
Was the President done in by the economy, or by the politics of the economy?
H/T to National Review Online