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Let's Get Lawsuit Mania Off the Docket

[Published in Newsday, April 12, 1991]

After a minor fender-bender, unhurt riders hobble around on crutches for months in hopes of a big settlement . . .

A leading Hollywood studio sues its rivals so often that its chairman boasts of having turned litigation into a profit center . . .

A sane, intelligent couple set out to get a "reasonable" divorce and end, a dozen rounds of litigation later, having annihilated each other's finances . . .

Why do Americans spend so much time, money and sadistic ingenuity beating each other up in court?

The sad answer: because our legal system is actually set up to encourage lawsuits. More than any other country, we make it easy and tempting for people to sue their fellow citizens. The rules are mostly new, many dating back only to the 1970s. And it's time we took a second look at them.

A thousand billboards, matchbook and late-night TV ads symbolize the problem. Accident? Injured? Bored with your spouse? Tired of working overtime to pay off those credit cards? Let us knock some sense into that doctor/boss/hubby/bank of yours!

Other countries discourage the stirring up of lawsuits (as did we, until 1977 when the Supreme Court suddenly legalized lawyers' advertising). Most countries also frown on the contingency fee, where a lawyer takes a share of a client's recovery and can thus become an overnight millionaire by getting a jury mad enough at the opponent.

American litigation, by contrast, is rapidly turning into an industry boldly and openly run for profit. Houston lawyer Joseph Jamail, for example, is said to have pocketed $ 400 million for his win in the Texaco-Pennzoil case.

But the problem goes much deeper. Our legal procedures give lawyers and their clients remarkable powers to tie up opponents and make them spend years and fortunes responding to a flimsy case.

Today's complainant can typically drag an opponent to court with little or no explanation of what he is supposed to have done wrong, then compel him - in what can amount to a gross invasion of privacy - to answer endless, inquisitorial questions and release private memos and documents that may or may not reveal any wrongdoing.

American courts are often willing to admit into evidence the testimony of expert witnesses, hired by one side or the other, who for a fee will swear to scientific theories ranging from the dubious to the downright wacky. In recent years, money has changed hands in American lawsuits on the strength of solemn expert avowals that car crashes cause cancer; that minute levels of pollution in the environment cause ailments from measles to gallstones; that various commonly prescribed drugs, held to be safe by the federal Food and Drug Administration, cause birth defects, and so forth.

Over the last few decades, both courts and legislatures have greatly loosened the rules of the game in litigation. Congress and the Supreme Court cooperated in a series of rule changes in the early 1970s; state lawmakers and judges have followed suit. The idea was always to help those wishing to sue - but one of the effects was always to pile new burdens on those responding to suits.

Defending a lawsuit over a major personal injury, such as paralysis or a birth defect, is now reported to cost between $ 500,000 and $ 2 million. That can provide an overwhelming incentive for defendants to offer a settlement, even when they are convinced of their innocence.

A Harvard study of New York hospitals indicated that in the substantial majority of cases where lawsuits were filed, the doctors had not in fact been negligent. But inevitably many of those cases won sizable out-of-court settlements. According to a report a couple of years back, every neurosurgeon in Washington, D.C., has been sued. So have between 70 and 80 percent of obstetricians.

When disgruntled unionists torched the Dupont Plaza hotel in Puerto Rico, lawyers for fire victims sued not the individual arsonists (who didn't have deep pockets, after all) but hundreds of companies that made flammable items on the scene, from wallpaper to bar stools to carpeting. They even sued the company that made the slot machines in the hotel casino. These target companies, faced with having to pay joint shares of a defense effort running to tens of millions of dollars, had to buy their way out of the suit for sums ranging from $ 250,000 to $ 500,000 on up.

The cost of divorce also has risen steadily, as the techniques of the new litigation - endless discovery probes into bank and business records, blame-mongering about every conceivable issue, the deployment of hired experts to testify in areas ranging from accounting to child psychology - have invaded family law. More lawyers are adopting "bomber" tactics meant to grant no mercy to the other side. One big Texas divorce was last reported headed toward a combined legal-fee total of $ 10 million.

Fear of lawsuits paralyzes whole areas of commerce, medicine, recreation and family life. Frequently sued organizations and persons all too often become bureaucratic and adversarial, having learned to see each new customer as a potential opponent. Surgeons insist on videotaping elaborate "informed-consent" rituals to fend off claims of failure to warn. Employers stop giving candid job references. Owners post country land against hunters and hikers. Parents locked in custody battles feel imprisoned in their jobs and routines, lest the opponent seize on any nonconformity and run to court with it.

Yet things could be different. Other countries recognize that litigation is a destructive, unfortunate thing -- sometimes a necessary evil, but prone to abuse and exaggeration. So they maintain rules and procedures, both in formal law and through self-regulatory efforts by the bar, designed to screen out the lame complaints from those that are well-founded. They try to make litigants think twice before pressing a weak case or defense - most notably, by requiring the losing side to reimburse the winner's legal fees at the end of a case. And they take care to keep law as a profession that tempers the zealous pursuit of courtroom victories with ideals of honor and scrupulous impartiality.

Why don't we?