In Love With Lawsuits

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Big-winnings plaintiffs always attract publicity, but the media almost always ignore those unfortunates who, despite frightful injuries, fail to persuade the jury of the defendant’s fault. In part this reflects the American obsession with finishing first. Remember Vince Lombardi: “Winning isn’t everything; it’s the only thing!” The journalist’s view of litigation also reflects our collective tendency to regard an event’s significance as directly proportional to the dollar amount it entails.

Whatever the social underpinning, the result is a national frame of mind, an article of faith, really, in which a court proceeding seems to become less an effort to ascertain the truth or to effect justice, or even to obtain a remedy, and more and more a riskless, cost-free game of chance. I say seems , because to the seriously injured person with large past and future financial losses, the uncertainty inherent in a trial poses the substantial risk of not obtaining any money at all.

True, the contingent-fee arrangement allows even the most indigent claimant to have a day in court. Yet it is equally true that in the event of a settlement or a favorable verdict, the fee, set as a flat percentage of any sum recovered, need not, and often does not, reflect either the time or the effort involved.

Lawyers have always justified the apparent unfairness by reminding us that whenever a plaintiff loses, the fee is zero and that, as a 1908 New York State Bar Association report piously observed, “it is perfectly fair that the attorney should receive an increased amount for the risk he runs of getting no remuneration at all.” That, however, is an economic argument pertinent only to the attorney, not to the plaintiff. Why should the lawyer’s lack of success for client number one increase the fee charged client number two? Why should a winning client subsidize the attorney’s unsuccessful efforts on behalf of anyone else?

LITIGATION is not merely our political crutch. It is our opiate, drugging our will to resolve problems and helping us fritter away our leisure.

Perhaps irrational, unfair, unequal treatment of litigants is merely the price society pays for a system that at least ensures an injured person access to a chance of justice. The cost is heavy, and not merely in a rhetorical sense. The litigational subindustry that has sprung up around the thousands of claims for injuries resulting from asbestos exposure has in a real sense corroded and corrupted clients, lawyers, witnesses, and courts. “Corruption” here of course means not that decisions have been dishonestly obtained but rather that justice, in the sense of fair results based on case-specific facts, has succumbed to the pressure of the numbers.

TO FURNISH THE VAST THRONG OF ASBESTOS- affected claimants even incomplete justice and to conserve the funds available for paying the claims, a settlement process has emerged that is cumbersome, impersonal, and, above all, expensive. Of every insurance dollar, sixty-seven cents goes to “transaction costs”—largely, but not entirely, fees for the attorneys on both sides. The courts, which in a less imperfect world would try to bring some order and fairness to the chaos, are helpless. A judge with five thousand asbestos cases on the docket will seize any opportunity to “move the business” and winks (or grimaces) at wholesale settlements that at least have the merit of bringing litigation to closure, whatever their individual inequities.

ASBESTOS LITIGATION, AND, FOR THAT MATTER, personal-injury litigation generally, by no means exhaust our national appetite for litigation. We tend to regard litigation as the panacea that will cure all society’s ills—quickly, painlessly, and cheaply. Legislation is slow, and the electoral process expensive. Much better just to start a lawsuit. From school desegregation to redressing gender imbalance to ensuring fair voting districts, we take all our problems not to church but to the courts. No wonder that the wisest of our judges, Learned Hand, once cautioned against resting our hopes “too much upon constitutions, upon laws and upon courts.”

 

Litigation is not merely our political crutch. It is our opiate, drugging our will to resolve our own problems, person to person. We go to the law these days for such matters as the Cracker Jack box that lacked a prize, the prom date’s defection, the lost-and-found lottery ticket. A Superior Court colleague of mine once had to devise visitation arrangements for a pet dog, the subject of a bitter intra-familial ownership contest. Another had to decide if a fifteen-year-old defendant should give back the thirteen-year-old plaintiff’s birth-control pills.