In Love With Lawsuits
Why Litigiousness Is a National Character Trait
November 1994 | Volume 45, Issue 7
In one of the earliest examples of American investigative reporting, Mein had printed in his Boston Chronicle customhouse records that exposed local merchants who had pledged not to import British goods but were breaking their own boycott. He also proved himself a skillful political satirist, verbally caricaturing the anti-British leaders with such close-to-the-bone sobriquets as “Muddle-head,” for the wild-talking, alcoholic Otis, and “Johnny Dupe, Esq., alias the Milch-Cow,” for the flattery-hungry John Hancock, whose large fortune made him the principal financial backer of the radical cause.
By the fall of 1769 the resentment had bubbled into violence. After a direct personal assault on the pesky Mein, the radicals literally ran him out of Boston. Hancock, however, using the law ruthlessly, achieved a more permanent revenge, guaranteeing that even if Mein returned, he would never again produce a newspaper.
Like most colonial merchants, Mein depended for his stock-in-trade on English suppliers, to whom he was perennially in debt. Well acquainted with Mein’s London creditors, Hancock undertook to act for the two largest, armed with their powers of attorney. It took almost three years; but when Hancock finished, all of Mein’s printing equipment had fallen to a sheriff’s execution sale, and the “scourge of patriots” had faded into newspaper history.
Litigation has, however, meant more than a safety valve for the population’s discontent. Lawsuits generally concern money, and money as the object of a contest in turn generates recompense for the lawyers. It is not entirely coincidental that the leader of the consortium that recently bought baseball’s Baltimore Orioles has, with conspicuous success, represented more claimants for asbestos-related personal injuries than any other Maryland lawyer. (A former Orioles owner was Edward Bennett Williams, another highly successful attorney.)
Concern for the financial aspect of law and lawsuits has always afflicted the bar’s evaluation of its role. John Adams complained in the 1760s of the oncoming new lawyers: “They swarm and multiply.” The practitioners established rules for admission to practice and advancement after admission. Ostensibly these assured the public of competent professional service. If regulating entry into the profession also prevented untoward dilution of the bar’s rewards, well, that was only a fortunate by-product of quality control.
Even then the law was too much of a profession to be a business—and too much of a business to be a profession. When in 1774 the Massachusetts Superieur Court of Judicature made its annual circuit to “the eastern Counties” (now Maine), Adams’s friend and fellow radical Josiah Quincy, though already wracked by the tuberculosis that would kill him within a year, “drove forward, I suppose that he might get upon the fishing ground before his brother Sam, and me,” trolling for clients.
It is neither immoral nor cynical to note that courtroom civil law—that is, any noncriminal trial—involves money, even when it does not appear to. Consider the most familiar form of civil litigation, a claim for money after personal injury. To an intelligent foreign observer, it sometimes seems as though Americans feel that whenever something bad happens to a person, someone else should pay. That, the observer might conclude, is the reason why courts are forever deciding that what appears to be perfectly blameless behavior results in liability to pay money damages.
Medical malpractice is an excellent example, or so doctors think. Why, they wonder, should a dedicated, hardworking physician have to pay, merely because the medical result was less than perfect? Passing over the thought that the patient owed his unsatisfactory final condition not to bad luck but rather to bad treatment, the answer is that society has determined that certain types of misfortune will rate financial recompense.
Of course, this determination did not depend upon a visible plebiscite. Nonetheless, the decision was as definite as if it had. The plaintiff won money damages because the law, the ultimate expression of society’s will, said he was entitled to make the claim, and because a jury, representing society’s view of the particular case, said the claim was valid.