It was no less an authority than Carl Sandburg, the poet and Lincoln biographer (Lincoln, the hero, not Lincoln the great trial lawyer of his era), who declaimed that no tears are shed as the lawyer’s body is borne to the grave. Attacking lawyers is more American than apple pie, which frankly is suspect in some quarters now that the lawyers have begun litigating over Alar. Jimmy Carter assailed the profession in 1978 for high costs, judicial delays and an emphasis on serving the privileged few. And more recently, the current poet laureate of the White House, Marlin Fitzwater, declared, “You never get into trouble attacking lawyers. Everyone ought to take every opportunity they can to bash lawyers. It’s so easy.”
As is so often the case, the conventional wisdom hasn’t bothered to reconcile itself. Why should it when sloppy thinking is, as Fitzwater might put it, so easy. Enter now the vice president of the United States. In a sober speech last week to the annual meeting of the American Bar Association, Dan Quayle put forward a 50-point program to temper, if not resolve, the nation’s much-discussed litigation crisis. The program is the product of the Council on Competitiveness, which he chairs. Quayle-playing Daniel in the lion’s den-put the blame where a politician might: on the lawyers. “Does America really need 70 percent of the world’s lawyers?” asked the member-and husband of a member-of the Indiana bar. “Is it right that people with disputes come up against staggering expense and delay.?”
Not, apparently, if they’re lawyers. Having listened to Quayle’s speech, a rehash of proposals first leaked two weeks ago and buried in the press, the president of the ABA, John J. Curtin Jr., felt the need to respond. “Drastically reducing the lawyers in America’s courtrooms will not make America more competitive in the marketplace,” he said. If they are gone, he added, “who will protect the poor, the injured, the victims of negligence, the victims of racial discrimination and … violence?” Quayle hadn’t seen such a softball since Lloyd Bentsen aimed one at his head. “Nobody is talking about eliminating lawyers,” he said in his rebuttal. “Nobody is talking about not allowing individuals to have their day in court. So let’s not be extreme.” With that, these litigators (Yo, America, did you see the study that reported higher testosterone levels in litigators? Very helpful to keep in mind) agreed to seek common ground in the future. And the hoary topic of litigation reform once again became page-one news.
The competing studies fly like subpoenas. The system is slow and expensive. The average lawsuit filed in court languishes for 19 months. Last year plaintiffs and defendants paid out $22 billion in attorneys’ fees. While most civil cases are settled out of court, defendants who go to trial are at the whim of increasingly generous juries. In 1962 there was just one personal-injury jury verdict over $1 million; in 1989 there were 588 verdicts over $1 million, according to Jury Verdict Research, Inc. (Many of these verdicts are reduced or overturned by judges on appeal.) One business coalition reports that 47 percent of U.S. manufacturers have withdrawn products from the market due to liability concerns. Some once successful U.S. industries–small aircraft, contraceptive-have been badly hurt by the costs of liability insurance. (Some people who have flown in unsafe planes or relied on hazardous devices have been badly hurt, too.)
The opposition to change comes from the trial lawyers. By preserving the status quo, they can continue to earn huge sums in contingency-fee lawsuits; typically they keep about one third of the total award. Joined by consumer groups who worry about reducing corporate incentives to market safe products, the lawyers warn against making public policy based on anecdote. They also question whether there is a litigation explosion. According to the Administrative Office of U.S. Courts, nonasbestos product-liability filings actually fell 40 percent between 1985 and 1990. Anyway, it could be a lot worse: the Rand Institute reported this year that only one out of 10 accident victims even considers a lawsuit.
Among the 50 recommendations from Quayle:
Cap punitive damages. Juries can award plaintiffs compensation for their injuries and larger punitive damages to punish defendants. The proposal would limit punitive damages to the amount of compensatory awards and permit only judges to levy them.
Attorney’s fees. Quayle’s proposal would include experiments with having the losers pay the winner’s legal fees. Sometimes called the English Rule, this is more accurately referred to as the rest-of-the-world rule. Proponents believe this proposal will discourage frivolous suits.
Discovery. Most lawyers agree that a lot of time and money is wasted during the pretrial search through the other side’s records. Under the proposal, parties would be required to disclose core information in discovery. To obtain additional information each side would have to pay the other certain “production” costs.
a Expert witnesses. To counter the explosion of “junk science” in many courtrooms, where trials become duels between bands of well-paid “experts,” the proposal would require that expert testimony be based on “widely accepted” theories and would ban payouts to experts based on whether their side wins.
Some of the proposals are uncontroversial. Alternatives to trials-mediation, arbitration-have been at the top of everybody’s list for some time, and many states have begun to try them. But trial lawyers and consumer groups say that limits on discovery will only help business defendants keep key documents from plaintiffs. The proposal to remove punitive damages from the province of the jury, says University of Wisconsin law professor Mare Galanter, smacks of an “anti-jury animus that is very offensive.” Moreover, the attention on punitive damages may be misplaced: they are awarded in fewer than 500 cases each year and often are reversed or cut back on appeal.
Opponents to change are most upset about the loser-pays rule. Solicitor General Kenneth Starr, who chaired the working group that put together the recommendations, said fee shifting is designed to have a chilling effect on “certain cases that should be chilled. " But consumer advocates said it will inhibit pioneering litigation. Early victims of asbestos poisoning for example lost their lawsuits. If this scheme had been in place, these sick workers would have been required to pay the legal fees of huge corporations. That’s a risk most of the middle class can’t afford. (The poor, however, might not be deterred because they have no money to pay even if they lose.) The loser-pays rule works in other Western countries that offer national health insurance to care for the ill. “You can’t take just part of their system,” says Linda Lipsen of Consumers Union.
This is a battle about who gets stuck with the bill. In the end we all do, through higher prices on everything from the cost of cars to babies. This leads to the inevitable finger-pointing and self-pity. (Did you hear about the surgeon so anguished over his insurance payments he quit to become a plumber? Neither did we.) In the very ubiquity of the lawsuit experience may lie its resolution. Once everyone has sued and been sued, perhaps there will be enough empathy in the land to work on this problem and solve it. Until then, please don’t miss the irony. Those normally most eager to get government out of citizens’ lives now beseech government for protection. And those most eager to have regulations for everything are content to allow cowboy litigators to roam across the nation’s range. “We will have a lot of time to debate this,” says Martin Connor of the American Tort Reform Association. “Maybe forever.”
Illustration:
Loser Pays: A defendant can win a suit today yet still have to pay big legal fees. Under a proposed change, whoever loses the case would also get stuck paying the winner’s bills. (RANDALL ENOS)
Illustration:
Discovery: Before trial, both sides like to take expensive fishing expeditions into the other’s records. A reform would have each side voluntarily turn over damning material. (RANDALL ENOS)
Illustration:
Expert Testimony: Some cases become swearing contests between experts who bend science to the needs of the case. Limits may be set on their testimony-and their stakes in the verdicts. (RANDALL ENOS)
