Outside the Beltway

LAWSUIT NATION

James Joyner · Wednesday, December 10, 2003 · 2 comments

Stuart Taylor Jr. and Evan Thomas have an interesting cover piece in this week’s Newsweek. The piece begins with several anecdotes involving a minister, an ER physician, and a volunteer softball coach living in fear of devastating lawsuits and the rather absurd precautions they feel necessary.

Americans will sue each other at the slightest provocation. These are the sorts of stories that fill schoolteachers and doctors and Little League coaches with dread that the slightest mistake–or offense to an angry or addled parent or patient–will drag them into litigation hell, months or years of mounting legal fees and acrimony and uncertainty, with the remote but scary risk of losing everything. And while lawsuits can be a force for good, they are also changing and complicating the lives of millions of American professionals in ways that confound common sense and cast a shadow over a system that can, at its best, offer people relief and redress from legitimate grievances.

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The cost to society cannot be measured just in money, though the bill is enormous, an estimated $200 billion a year, more than half of it for legal fees and costs that could be used to hire more police or firefighters or teachers. Our society has been changed in a subtler, sadder way. We have been hardened and made more fearful. Friends and neighbors are more wary now. Almost anyone has to ask: if I say or do something that might be taken wrong, will I wind up in court? Mentors and teachers are restrained from offering either comfort or discipline–might that touch be misconstrued, those stern words somehow made “actionable”?

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Conventional tort reform does not really go at the deeper problem. It does not bring about fundamental change in a system that affects the lives of millions by disrupting the services they depend on. Howard has suggested a more radical approach–removing disputes in education and health care from the regular court system altogether.

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Bringing about such fundamental changes would require political battles in Congress and the state legislatures. They are open to legitimate debate and negotiation, but they do seem to head in the right direction. The trial lawyers maintain that fictional or inflated horror stories have frightened the public, and they can point to dramatic examples where the jury system worked . . . . At this stage, Common Good, the legal-reform group headed by Howard (and funded in part by corporations), is only trying to raise public consciousness, not to lobby. Legal reform is a painfully slow process; over the past 30 years, attempts to require mediation before going to court have done little to stem the litigation wave. But the time may come when ordinary Americans recognize that for every sweepstakes winner in the legal lottery, there are millions of others who have to live with the consequences–higher taxes and insurance rates, educational and medical systems seriously warped by lawsuits, fear and uncertainty about getting sued themselves. One day, they may realize that their right to sue has become a trial for us all.

Indeed. This is an amazingly complicated issue, and even a fairly lengthy magazine article just barely scratches the surface. But it’s worth reading.

There is a companion piece by Sen. John Edwards, trial lawyer and presidential candidate.