The Case against Lawyers

The Case Against Lawyers

by Catherine Crier

Broadway Books, 2002

256 pages, $23.95 cloth

Catherine Crier is a former lawyer and judge in Texas who went on to television with CNN and other prominent roles as a journalist. She current hosts her own show on Court TV. In her provocative and important new book, The Case Against Lawyers, she calls into question some very troubling trends in our society and the role lawyers, judges, bureaucrats, and lobbyists have played in those trends.

As a lawyer myself, I hasten to add that much of the bar is not targeted by Crier ... but she certainly makes a strong case against those she believes have done serious harm to the country’s legal system.

The Litigation Industry

Crier identifies the culprits in what she terms a flight from responsibility: the creation of a system of endless rules, mandates, implied duties, and special legislation in our current legal system. She links the out-of-control damage awards granted by our civil system with the political lobbyists who deliver rules tilted in favor of plaintiffs. She forcefully argues this situation has led to the erosion of the principles of a free society, and the picture she paints isn’t pretty.

She offers solid examples of our penchant for creating rules to address every imagined social ill. Our desire to have “someone” do “something” creates an environment that encourages manipulation by much of the organized bar. The process starts with the adoption of legislation, then continues with the adoption of regulations. Finally, the process is completed with the pervasive attempt to expand the scope of the statute, whether with further legislative acts or with the help of the courts.

The culprits are lawyers, social activists, special-interest groups, politicians, and bureaucrats, each with their own motives. The lawyers see the prospect of a big payday for themselves by the use of myriad devices that tilt the playing field their way. Social activists satisfy their objectives and fill their coffers by regulation that creates special classes of every imagined disadvantaged group. The politicians and bureaucrats are primarily motivated by the flow of money that is recycled by the trial bar to support its most reliable allies.

Crier calls this a destruction of our democracy because law and public policy are no longer being made with the purpose of having common ground rules built on a foundation of personal responsibility.

A Pattern of Abuse

Some of the effects of the expansion of rulemaking Crier describes have become so ingrained in our lives we barely realize how deeply they’ve set into the public interchange. She cites several cases of imposing liability on companies even for products whose risks are well-known to the user, such as the tobacco lawsuits and the case of the woman who sued McDonald’s for not warning that hot coffee could scald her if spilled.

Crier also points out the problem of imposing liability for possible harm, even though there may never be any actual harm. The asbestos industry, for example, has been the subject of thousands of lawsuits filed by people who have been exposed to some asbestos but have no signs of any injury, and in the vast majority of cases never will. The effect, Crier points out, has been the destruction of many companies who played only a small and tangential role in the asbestos industry.

Companies have adapted to this environment by adopting a defensive approach to doing business. Some now place on their products labels that warn us of risks so remote or silly they do us no good--like the label that tells parents to remove the baby from the stroller before folding the stroller. Others have removed products from the production line altogether, because it’s cheaper to lose that revenue stream than to pay for lawyers to defend against the claims and for insurance to cover losses.

The tort system, Crier says, has become a grand lottery where no one is responsible for anything, while business is responsible for everything. She points to a decline in the number of public playgrounds and swimming pools caused by the fear of lawsuits, which are filed and too often won regardless of whether the public agency acted in a responsible manner. In the medical industry, doctors increasingly avoid certain specialties, like obstetrics and gynecology, and those that do practice those specialities pay extremely high costs for malpractice insurance.

The Feeding Frenzy

The legal system today undermines personal responsibility and at times rewards irresponsible behavior. Crier puts much of the blame squarely on the trial bar, which uses its institutionalized tricks to encourage this evasion of responsibility in order to enrich themselves.

Contingent fees and the lack of a “loser pays” rule in the courts makes litigation virtually risk-free for plaintiffs. The prospect of punitive damages being awarded in amounts grossly disproportionate to the actual damage claimed makes litigation a feeding frenzy when there is any sign of weakness or an opening that has strong emotional appeal. It allows entire industries to be targeted by forum-shopping, i.e., looking for the place with the most sympathetic courts or the most liberal rules for damages.

Crier points to the rules applying to class-action lawsuits as an example of the way the system is rigged to serve the lawyers and not the broad class of citizens and consumers. She asks what social good is served by a case where the nominal client and all members of the class get a coupon for a token discount on a product and the lawyers walk away with a multi-million dollar payday, while the targeted product itself either disappears from the shelves or has a litigation tax added to its price.

The Entitlement Mentality

Another area of concern raised here is the relentless press for equality of result, rather than the freedom of opportunity on which the U.S. was founded. The result, as Crier points out, is the creation of protected classes of every imagined sort. Rather than rights, we end up with an endless list of entitlements that can be enforced against all institutions in society.

As an example, Crier cites the disability bar, which has sprung up to watch for any sign of unequal access in situations with no practical significance or harm. In Tampa, Florida, a wheelchair-bound man sued a strip club because it did not offer lap dances in an area accessible to wheelchairs and allegedly steered the most attractive women away from disabled patrons.

This pursuit of entitlements has undermined freedom of contract and the ability of employers to regulate the workplace to maximize the efficiency of the operation. The fear of lawsuits causes the adoption of rules dealing with sexual harassment, creating speech codes to regulate “bad” speech and having what amount to quotas in hiring, firing, and marketing. The spread of this problem into the universities through speech codes and the creation of special-interest studies is evidence of the pervasiveness of the problem.

Julian Bond, a liberal and civil rights leader, is quoted by Crier as saying, “Today the protected classes extend to a majority of all Americans, including white men over 40, short people, the chemically addicted, the left-handed, the obese, members of all religions. Surely there is a scholar somewhere who can tell us how we came to this state of affairs and how the road to civil rights became so crowded.” (page 28)

Destroying Schools

In a particularly important chapter, Crier examines the way education in the U.S. is now being exploited and attacked by the same relentless process of creating entitlements and victims. Fear of having to defend its own professional judgments, for example, has led the education establishment to create a special-education industry that labels students “disabled.” Since 1970, the number of children considered in need of special education has tripled. Meanwhile, children who are truly learning-disabled are increasingly mainstreamed, even though they would be served as well or better in a more traditional setting.

An example of the defensiveness that has grown up is the number of children being put on Ritalin and other drugs, in some cases against the wishes of parents. In some cases, parents have been deemed to have committed child abuse for denying this treatment to their children. This entitlement mentality and the fear of the education establishment has also allowed an enormous increase in bilingual education programs, slowing down the advance of large numbers of recent immigrants.

Crier’s harshest criticism of the education establishment is levied at teacher unions, who resist any attempt to measure the performance of teachers and are protected by the powerful trial bar with extravagant due process rights before they can be dismissed for lack of competence. She cites in support of her claim the chilling statistic that in 1999, of 72,000 teachers in the New York public school system only 600 received an unfavorable rating in their job reviews ... while nearly half the students are functionally illiterate.

Some Solutions

What is the way out of this maze created by lawyers, bureaucrats, lobbyists, and judges? Crier makes many common-sense recommendations, including:

• reinvigorating the common law concept of assumption of risk, and not punishing parties for uses of their products that are not reasonably foreseeable;

• eliminating joint and several liability, which allows a party having only a small role in the negligent action to be pinned for the entire damage;

• allowing federal courts to intervene when class actions are certified by abusive forum-shopping; and

• limiting damages for emotional pain to something reasonably related to the actual damage suffered.

Crier would insist on a system where the loser in a civil lawsuit pays the legal fees incurred by the winner. She would allow judges broader power to sanction lawyers who bring frivolous actions or act in bad faith, demanding amounts clearly in excess of any harm done. She would ban the truly pernicious practice of putting into new legislation the right of parties enforcing new entitlements to recover their legal fees for the suit.

Crier points to the role of money being infused into the political system by those who want to tilt the system in their favor. One reform she suggests to address this is to strengthen the rule against working for an employer in an industry related to one’s government service after leaving government service. Crier says at least one Presidential election cycle should separate the periods.

Perhaps the strongest point Crier makes on reform is this: “This destructive evolution can be changed, but not by rules or laws. Only a change of heart will do.” (page 221) In the end, change will come only if people insist on change, so that we once again become believers in personal responsibility and accept the obligation to assume the risks of living.

The call for reform in this book is sometimes lost in attention to matters not directly related to the problems Crier points out. There is a sentimental discussion of the problems with the system of capital punishment. A chapter is devoted to the excessive money and attention spent in the hopeless drug war. The discussion of campaign contributions doesn’t make a sufficient distinction between those who want to buy special legislation for private benefit and those who have a principled and fervent cause. But these limitations don’t detract significantly from the book’s central arguments and Crier’s prescription for reform.

Crier has written a devastating critique of the current legal system and a blueprint containing many key reforms that believers in liberty will applaud. She offers an optimistic view of the possible ways toward these reforms. She also asks whether the public has the will to put the brakes on the excesses of the system, especially when faced with the powerful forces that have an incentive to thwart real reform. Only time will tell, but this book is a major contribution in the intellectual battle to end lawsuit abuse.

Paul E. Fisher is head of real estate for the Chicago-based law firm McGuireWoods and a member of the Board of Directors of The Heartland Institute.