February 14, 2005

Law n' disorder, part II

Rob Asghar

The toilet brush bears a label with an ominous warning: "Do not use for personal hygiene." A warning label on a scooter is even more grimly matter-of-fact: "This product moves when used."

Those were the first- and second-place winners in last month's 8th Annual Wacky Warning Labels contest, run by Michigan Lawsuit Abuse Watch (M-LAW).

Most trial lawyers insist they do society a service by hammering irresponsible and unresponsive corporations. But when corporations need to put a label on a thermometer warning that, "Once used rectally, the thermometer should not be used orally," it's evident that the corporations are cowering, not cocky.

I argued last week that lawyers, despite the ridicule they receive, are much less responsible for creating our lawsuit-crazed times than our overall society is. Still, we now must shrink that vast pot of gold that incents hundreds of thousands of lawyers to attack our institutions and hundreds of thousands of other lawyers to convince those institutions that - for a small fee - they can get protection from those attacking hordes.

James R. Copland, Director of the Center for Legal Policy at the Manhattan Institute for Policy Research, writes on TrialLawywersInc.com, "Given that 19 percent of all tort costs go to plaintiffs' attorneys, we can imagine a corporation called Trial Lawyers Inc., which rakes in almost $40 billion per year in revenues-50 percent more than Microsoft or Intel and twice those of Coca-Cola."

That's hardly the only "cost." Factor in the time and energy that could be spent in more productive endeavors. Factor in the creative risks that aren't be being taken by persons, schools, doctors and businesses that are straight-jacketing themselves to avoid litigation.

"Our society has so many laws that people do not know where they stand," Paul Barranger, general counsel of legal reform group Common Good told me recently, using schools as a key example of a compliance-burdened enterprise. "Teachers have difficulty maintaining order in their classrooms because disciplining a disruptive student involves a possibly lengthy due process hearing. In New York City, for example, it can take 106 days to suspend a disruptive student."

Barranger says that our health-care system, too, is having a "nervous breakdown" due to our capricious approach to medical justice. But Barranger and Common Good are doing more than just complaining: They are working with groups such as the Harvard School of Public Health and the Robert Wood Johnson Foundation to develop solutions such as special health courts which, as Barranger says, "would have trained judges relying on neutral experts to reliably address medical malpractice claims. We'll also be looking at the experience of other countries, including New Zealand and Sweden, which have had systems for compensating injured patients."

For years, author Walter Olson has been a thoughtful critic who noted that things don't have to be like this. Writing in Newsday more than a decade ago, he noted that other countries have had much to teach us: "[T]hey maintain rules and procedures, both in formal law and through self-regulatory efforts by the bar, designed to screen out the lame complaints from those that are well-founded," he wrote. "They try to make litigants think twice before pressing a weak case or defense - most notably, by requiring the losing side to reimburse the winner's legal fees at the end of a case."

I can get behind that. When the NFL a few years ago adopted instant replay to overturn bad referee calls, it did so at a cost - one timeout is taken away from a team that unsuccessfully challenges a referee call. It's not even a significant cost, but it's enough to create an incentive for a coach not to use it spuriously or to manipulate it for some unintended competitive advantage.

What does it say when pro football is run in a saner manner than our larger society?

We also shouldn't lose sight of the difference between emotional catharis and legitimate uses of our courtroom: I've had friends and colleagues who have sued to address grievances, and even have won. Yet I often suspected that they often grew smaller in the process; they became slightly more bitter, more focused on getting even than getting ahead.

Why don't we stop making it financially worthwhile to do this to ourselves?