February 7, 2005

Law and disorder, part 1

Rob Asghar

Why do we ridicule them? They often are the brightest bulbs in the pack. The ones with the fascinating insights you love to hear at the lunch table. The ones with the wits and creativity to solve household problems. The kinds of persons you could bring home to mom, eight or nine times out of 10.

They are the majestic but maligned species known as lawyers. The tragedy is not that these beings roam our earth; the tragedy is that we have taken these creatures, representing the apex of human talent, and used them against us.

"Guns don't kill people," some have argued; "people kill people." Lawyers are now our nation's semiautomatic weapons, and we have none but ourselves to blame.

"I urge Congress to pass legal reforms this year," President George Bush wished or hoped or prayed in his State of the Union address. He may need more than prayer; we're in deep.

Walter Olson, author several books on our lawsuit-addicted society, has observed that "the litigation explosion" (which is in fact one of his book titles) resulted from rule changes in the 1970s that began to make it easier for a man to file a suit than for him to defend himself against a suit.

True, lawyers could walk away with huge fees, but only because it has seemed so advantageous for individuals and corporations to go on the legal offensive at little personal financial risk.

"Law attracts a great deal of top talent if they're not driven to other professions" such as science or medicine, Olson said this week in a phone interview. "Most of them are pulled in by the options and incentives."

A bright young lawyer colleague concurred. "I'd say about 70 percent of the students in law school were there not because they loved Law," she said, "but because it was just the thing to do if you weren't interested in medicine or other top professions."

There is a practical result, Olson noted: "The shame is that society takes many of our brightest people and turns them to fighting each other."

Indeed, for them to share in the financial blessings made possible by our own greed, these top minds employ their skills and ingenuity to sharpen and heighten the adversarial relationships at every level of human affairs.

What is the result for society? "Paranoia is one reaction, and not the most irrational one, Olson says. "Everything is based on the bad things that the other side can do to you."

But what does this do to the lawyers themselves?

"The legal profession has a great deal of burnout," Olson says. "They ask, 'What good is coming of this? I managed to outwit an opponent. But would I have felt more of a sense of accomplishment if I were building houses?'"

How about a lawyer retraining program, to get them out there building those houses, growing vegetables or teaching children?

First, though, we need to do something about those nasty economic incentives that created our lawyer glut-the same incentives that compel us to manipulate the law to strike terror in corporate competitors; to force a former employer into offering a quick and tidy cash settlement through the threat of a protracted, contingency-based suit; to force businesses of every size to focus more on avoiding risks and less on taking new risks.

Why blame lawyers for this? This is our collective fault. We willingly keep ourselves in a position in which we may make money if we sue, a position in which that money will then be lost after we get sued, a position in which we all squander time and creativity. The only parties that consistently win are the lawyers, who are much smarter than us anyway and who now may be tempted to put those wits to work against any efforts to change.

But change we must and change we can. Next week I'll explore some solutions that are emerging.