Excessive Litigation

The last of the five major concerns to be covered from "My Mandates" is excessive litigation.

The law is the fundamental strength of this country. In theory, it doesn't matter if you are an auto mechanic from Peoria or a corporate executive in Philadelphia... the laws are blind to personal circumstance. Of course, the ability to pay for legal counsel differs among our population... but the law is, technically, neutral.

Why then the great concern about excessive litigation? The U.S. government has had formal hearings to discuss the impact of perceived excessive litigation. Everything from fishing to education to medical malpractice to nearly anything and everything.

Nevertheless, "nothing is ever as simple as it first seems." Professor Deborah L. Rhode is the Ernest W. McFarland Professor of Law and Director of the Stanford Center on Ethics at Stanford University.

The real problems with the litigation system, Rhode suggested, involve its expense, inefficiency and the inconsistency of results. Few victims file successful claims, those with the most serious injuries receive too little and, all too often, lawyers are overcompensated. Citing class action cases, where class members’ injuries are often minimal yet settlements are expedient, Rhode noted that, “the real parties in interest are the lawyers.”

Roughly translated, that means "it's not the lawsuits, it's the suits filled with lawyers."

In Henry VI, Shakespeare wrote, "The first thing we do, let's kill all the lawyers." As pointed out by many,

The accolade is spoken by Dick the Butcher, a follower of anarchist Jack Cade, whom Shakespeare depicts as "the head of an army of rabble and a demagogue pandering to the ignorant," who sought to overthrow the government. Shakespeare's acknowledgment that the first thing any potential tyrant must do to eliminate freedom is to "kill all the lawyers" is, indeed, a classic and well-deserved compliment to our distinguished profession.

Is excessive litigation a problem? It appears the answer is both "yes" and "no". It is not a problem in the sense that legitimate litigation redresses wrongs. What appears to be excessive is the incentive to sue on the part of some lawyers. Contingency fees have become the center of focus for those who believe that certain lawyers thrive on filing individual and class-action suits designed to exploit the propensity of some juries to award "damages" for unsubstantiated "injuries". Vice-presidential candidate John Edwards was often accused of that very strategy during the course of the recent election campaign.

Yet, the American Bar Association vigorously defends continginency fees and argues that it is a needed and noble practice where the lawyer assumes the expense risk for a client who is unable to afford the cost of litigation... in return for a share of the award, if any... and limiting or eliminating such fees would actually do more harm than good.

The ABA doesn't represent the thinking of all legal experts;

Jeffrey O'Connell cowrote an article in the March 15 National Law Journal arguing for a proposal that would limit excessive contingency fees, saying "The proposal would create an incentive for settlement offers that would net claimants what they would receive under the current system, or even more, while saving defense litigation costs. Some critics charge that the proposed rule will create situations that benefit everyone except the lawyers. Just so: The reform is designed to benefit injured parties and American consumers."

The strength of our nation is that we are a nation of laws. The weakness that many perceive is that we are not a nation of ethical behavior... which is, perhaps, why we perceive that legal behavior is not always the most desirable behavior.

Our nation needs lawyers and courts to protect its citizens from the unethical behavior of other citizens, corporations, and the government itself. What may be needed is enforcement of laws that protect other citizens, corporations and the government itself from unethical behavior (not necssarily as defined by the ABA) of some of its citizens... which may include lawyers who target certain industries or professions, not because of inferior products or services, but because they can and because it rewards them well.

Side note: I have one son who is an engineering consultant for a firm that evaluates products involved in lawsuits to determine if injury is caused by faulty product design, insufficient instructions for use, or poor warning labels... or faulty product users. I have another son who plans to become a lawyer. They are both highly ethical people. Our society needs both for its protection.