Only in America
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6 March 2014
The next time you are trapped at a dinner party where you, as the token lawyer, are berated for your contribution to the "wave of US-style litigation" that is presently "engulfing" our society (as the newspaper editorials might put it), here are some recent stories from the press in US that put our own litigiousness into some kind of perspective.
For a start, there is the convicted sex offender in Florida who fled into the woods pursued by police, suffering frostbite and losing a few toes en route, who sued his pursuers because he was not arrested fast enough. Or what about the Phoenix mother who admitted lacing her daughters' ice-cream with prescription tranquilizers, but then went on to sue doctors for their responsibility for her own drug-induced delirium?
Both true reports are culled from the rather wonderful US website overlawyered.com, which chronicles the excesses of litigation culture on the other side of the Atlantic. This month Walter Olson, the site's editor and a heavyweight legal commentator, publishes his new book, The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law, which delivers a withering attack on lawyer greed. It comes hot on the heels of another indictment of the failings of the US legal system by Catherine Crier, a talk-show host and former judge, snappily entitled The Case Against Lawyers.
There is nothing new about lawyer-bashing, although it is a sign of the times that it has become such a marketable commodity in the US. Crier's book has hit the heady heights of number 15 in The New York Times bestseller list, and Olson's more serious exploration is picking up rave reviews and promises to go the same way.
So what is, as Crier puts it, the case against lawyers? "Well, we left your fine country to escape King George and one individual passing laws," replies Crier. "We had the rule of law, which reached out to this country with a sense of equality and justice. Now we have created such rules and laws, they're as tyrannical as King George. The ones pulling the strings are predominantly the lawyers, not only in the courts, but also the politicians and lobbyists on Capitol Hill."
Crier was a Dallas County district judge before becoming a talk-show host; she is now the face of court television, presenting Catherine Crier Live. There is nothing new or terribly insightful about Crier's book, but it amounts to an entertaining 'greatest hits' of lawyers' failings. It cites the usual examples of legal excess - for example, the woman who collected $450,000 (£280,000) after tripping in a rodent hole in a park in Arizona - and the absurdities that the fear of law suits has led to, such as the sign on the baby push chair helpfully informing users to 'Remove child before folding'.
But Crier's book is also a call to arms for, in her words, "a citizens' revolt" against the legal profession. "Our great cornerstone of democracy, the rule of law, has become a source of power and influence, not liberty and justice," Crier contends. "I resent the insidious manipulations by those entrusted with such authority, but even more I despise our deliberate ignorance and passive acceptance of these shackles on the American spirit."
Olson offers a more considered analysis in The Rule of Lawyers, which amounts to a full-blooded attack on the massive class action culture that pervades US society. Olson, a senior fellow at the Manhattan Institute who has been called "perhaps America's leading expert on overlitigation", says: "Such legal actions seek to invent new law, to ban or tax or regulate something that elected lawmakers had chosen to leave alone." He argues that each time the new process works as intended, the "new litigation elite" reaps billions in fees, which is then invested in fresh rounds of suits, as well as political contributions.
In Crier's book, the author name-checks Philip K Howard, a New York lawyer and chair of a group called Common Good, which features such luminaries as Newt Gingrich and Senator George McGovern on its board. A couple of weeks ago the group placed full-page advertisements in both The New York Times and The Washington Post to kick-start a legal debate on the need to reform the US's "law suit culture". The ad was entitled 'Is the Legal System Broken?', and argued that "legal fear" has become "a defining characteristic of American culture". "Common sense is an early casualty, but not the only one," it reasoned. "Fairness suffers as well. Lottery-like verdicts provide riches to a few to the detriment of many, sometimes leaving no funds to compensate true victims." The group went on to call for reform beyond "just capping excessive awards".
As luck would have it, on the day that The Lawyer talks to Olson and Crier, a Californian court has slashed the award of a dying smoker from $28bn (£17.4bn) to $28m (£17.4m). To such critics, the apparent randomness of the appeal judge's decision speaks volumes about the absurdities of US-style justice. "It's like having different people stick their hands into a spinning barrel to try and find the lottery number," comments Olson. "They've just plucked a number which I think is more reasonable, but it's still plucked out of thin air."
"The question then becomes, what kind of arbitrary unpredictable rule do you wish to live under?" he says. "That of a non-random jury group of six or 12 people resulting from our jury selection process, or the non-random rule of people who have gotten themselves appointed to judgeship?"
Crier has just been debating the appeal ruling on her television show. She sees the ruling as further evidence of a court system that has "run amok". "Punitive damages are the sock in the stomach for gross negligence," she says. "And it should be a one-time event, and every person who goes to court shouldn't be able to access the same punitive damages - that's double jeopardy."
But why is the US system so prone to these excesses? Olson reckons that Commonwealth countries opt for more predictable damage models, which filter out the factually dubious claims and also try to keep awards by different courts comparable. He says that the US, partly because of federalism, lacks such checks.
But even more damaging is the fact that the more speculative or adventurous claims are not discouraged from being argued before the courts. "As every jury is a new authority on those factual questions, you get what I call the 'sharpshooter syndrome' for defendants," he says. "It doesn't matter if you win the overwhelming majority, because if the damages are high enough you only have to lose occasionally - and that's what's happening with the tobacco companies."
Add to that situation those rogue courts "where almost anything goes". "Lawyers serve cases into those courts and they produce decisions which influence the whole national economy; and in many cases they're the result of peculiar local legal culture, where the judge may happen to be the former law partner of the hot-shot local lawyer, and jury selection is such that it would never pass muster in the more conservative states," says Olson.
The American Tort Reform Association (ATRA) has a rolling 'judicial hellholes' review programme. Number two on its list is Madison County, where the personal injury bar contributed more than 75 per cent of the estimated $800,000 (£497,400) given to judges' political campaigns. According to ATRA, there has been a 3,800 per cent increase in class action lawsuit filings, in one Illinois circuit court.
Olson explains that, since the 1950s, there has been an extension of long-arm jurisdiction, stripping away the former protection that a defendant could not be sued in a given jurisdiction unless they conducted a substantial amount of business there. As he argues: "We've removed those protections and it is like water finding its own level and flowing downhill." These are the courts that are overrepresented on the pages of overlawyered.com and in Crier's book.
The former judge concentrates on lawyers' influence throughout society, and in particular how trial lawyers have infiltrated the political class and put the blocks on tort reform. "The Democrats are pretty much in the pockets of plaintiff lawyers," comments Crier. "But having said that, the Republicans and their corporate lawyers are also playing the system for everything it's worth."
To many trial lawyers, especially those made rich by the tobacco bonanza, George Bush's presidency was their worst nightmare, as he made much political capital attacking lawyers and in his home state of Texas he capped legal fees and limited jury awards. According to Crier, in the 1999-2000 election campaign, lawyers and law firms topped the list of all industries contributing to the congress, giving more than $29m (£18m), with 67 per cent going to the Democrats. The Association of Trial Lawyers of America (ATLA) was ranked as the sixth most powerful lobby group, and 90 per cent of its contributions went to Democrat candidates.
John Coale, a Washington DC lawyer who made his money through tobacco litigation, bluntly states: "With a Democrat Congress, tort reform doesn't happen." Now that the Republicans have just won back Congress, law reform will be firmly back on the political agenda. The decision by John Edwards, a Democratic senator from North Carolina, to seek presidency in the 2004 campaign last week will further inflame the debate. Edwards made his millions as a personal injury (PI) lawyer, winning record damages for people harmed by medical malpractice or defective products, and usually earning a third of the award in each case.
Away from the politics of tort reform, this latest stateside anti-lawyer backlash has a strong libertarian theme. As Olson puts it, by "opening the floodgates to endlessly creative ways of blaming others, we keep sending a message to ourselves and our children that, when you run into reverses in life, you're bound to find someone to blame".
The most popular section of the vast overlawyered.com site is the 'Whatever happened to personal responsibility' section. A few headlines offer a flavour of the kind of stories posted there: 'Patient sues hospital for letting him out on the night he killed'; 'Rough divorce predisposed him to hire hitman'; and 'Pitcher hit by line drive sues maker of baseball bat'.
Before we get too smug, though, there is an increasing contribution from the UK, such as 'Stop clowning around, clowns told', which came from The Times last year. It tells the sorry tale of UK clowns terrified that unappreciative patrons would sue them over injuries from thrown pies and water-squirting.
Crier saw her fair share of absurd legal actions first hand when she served on the Bench in Dallas. When asked for a favourite, she cites the case of the man who had a penile implant and was suing because it "was not as large as he remembered". "He represented himself, the defendant was represented by a woman and there were 12 women on the jury, and part of his appeal in law was that a woman couldn't possibly understand his problem," she recalls.
Does it worry Olson that overlawyered.com is read as a comic site as opposed to a platform for his more earnest law reforming? Not at all. "I try to make sure it's humorous. Otherwise, frankly, you'd just cry," he says.
Nevertheless, his intention to save US society from the lawyers is absolutely serious. "You just end up with a society that's a less adventurous one, where people talk about the 'child-proofing' of society, warning labels are posted on everything and it's impossible to find any kind of hazardous activity, even if you're willing to sign endless waivers," he says.