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	Well, Let's Not Kill All the Lawyers Despite Problems, the U.S. Tort System Is an Important Element of Checks and Balances By Steven Greenhut The Orange County Register [California] July 8, 2007 http://www.ocregister.com/ocregister/opinion/columns/article_1756375.php Every now and again, some absurd legal case becomes the poster child for everything that's wrong with the American tort system and becomes the rallying cry for reformers who want to rein in the ability of Americans to sue one another. I have, in one column four years ago, called for predatory attorneys to not only be disbarred but drawn and quartered (OK, it was a bit tongue-in-cheek), yet here I offer a slightly different take, after coming to the painful conclusion that our current system is probably better than any likely alternative, although there's certainly room for careful reform. I actually raise a cheer-and-a-half to the underappreciated trial lawyer. But first – so that my readers don't think I've gone completely 'round the bend – I want to express sympathy for those people abused by overly aggressive trial lawyers. Too many folks see every miniscule slight as a potential lottery win, and, unfortunately, there are too many lawyers who take ridiculous cases. One can hardly get into a tiny fender-bender without one driver suddenly noticing some "back pain." Ever wonder why insurance rates comprise such a big chunk of the family budget? Most of us remember the 1994 case in which an elderly woman was initially awarded an astounding $2.7 million in punitive damages after she was burned by a hot cup of coffee she bought at a McDonald's. And many of us will long remember the case last month, in which a Washington, D.C., judge sought $54 million from a small, family-owned dry cleaner for losing a pair of pants. A judge dismissed that case, but for two years the couple had to run up legal fees defending themselves against a frivolous and mean-spirited case, while worrying about losing their business and their savings. I'll tick off a few more of the nearly endless examples of lawsuit abuse. In 2003, I wrote extensively about what were called "shakedown lawsuits." Law firms abused the state's consumer laws to extort settlements out of businesses that had done little, if anything, wrong. Attorneys sent out scores of letters to small businesses, arguing that they violated some fine-print in the state code, and threatening to go to court unless the business owner settled for, say, a few thousand dollars. The attorneys pocketed the settlements – all in the name of protecting the public. Then there are those absurd class-action cases in which you, the supposed victim, receive a $10 gift card from whatever "evil" company supposedly abused you … while the attorneys pocket millions. Don't forget those activists who use the legal process as a means to achieve public policies that they could not get through a legislature. For instance, trial attorneys have sued gun manufacturers on behalf of Americans killed by properly functioning guns. It is one thing to sue a company if a gun blows up in your face, quite another to sue because someone used a gun for ill. These lawsuits are an attempt to drive gun makers out of business. This is a planned end-run around the Second Amendment, although Congress and some courts have stepped in and imposed limits on that particular type of abuse. I could go on, but I realize that the one thing more frightening than the current, often-crazy system would be its emasculation. Joking about "killing all the lawyers" (a paraphrase from Shakespeare) is good, healthy fun, but who are you going to call if someone causes you serious harm, or if the government abuses your rights and refuses to do anything about those officials who abused you? I have yet to meet anyone, even the most dogged supporter of tort reform, who would willingly give away his option to hire an aggressive attorney if circumstances ever warrant it. In many grievous situations I've covered, had it not been for trial lawyers there would be no justice, no restitution, no public disclosures of illegality and abuse. Had it not been for the much-maligned contingency fee system – in which attorneys get a portion of any monetary judgment – few poor or middle class people would be able to have their day in court, or to hire a first-rate attorney. "I was a conservative Republican activist and accepted the gospel that … trial lawyers are bad," said John Manly, the Costa Mesa trial lawyer who has pursued many sexual-abuse cases against the Roman Catholic Diocese of Orange. But over the years Manly came to a different view, as he has been able to secure judgments for many victims abused and raped by priests, and those judgments have forced open sealed documents so that the public can learn about the abusers and those who covered up for them. It was the tort system – the lawsuits and threats of legal action – that not only provided restitution for those who were genuinely harmed, but forced the Diocese to remove abusive priests and implement new policies to protect children. The criminal-justice system is supposed to deal with punishment, and the tort system with restitution. Unfortunately, I've seen enormous failures by the criminal justice system. For instance, of 550 tort cases involving abusive priests in Los Angeles County, only three priests, Manly said, have ever been convicted. In Orange County, with 90 cases involving 40 alleged perpetrators, two have ever been convicted. There are many theories for this, few of them nefarious, yet it's clear that there would be little justice in the church-abuse cases, for instance, had it not been for trial lawyers pursuing restitution on behalf of victims. "Trial attorneys are entrepreneurs doing this on our own, at our own risk," Manly said. "There is no guarantee we will win. We take tremendous risks because we believe in what we're doing." And they also take tremendous risks because they believe in the potential payout at the end. (I facetiously refer to Manly's new office building as the Bishop Tod Brown Building, in honor of the man who, as leader of the Orange County Diocese, presided over record legal payouts that no doubt helped fund the new digs.) But what's really wrong with that, as long as it's a serious case of abuse or negligence and not some nuisance suit designed to score a big payout or settlement for nothing? In a case of injustice, or official negligence, or true corporate malfeasance, wouldn't you prefer the freedom to contract with a trial lawyer and have your day in court than to rely on official channels – i.e., red-tape-laden regulatory agencies and uninterested district attorneys – to pursue justice? I've written about people who have had their property taken by the government, or have had their rights unfairly trampled by police or deputies patrolling the jail. In none of those cases would justice have been done without civil lawsuits. Even with corporate matters, we know that companies might not fix serious and dangerous defects if there were severe caps on punitive damages. From a free-market perspective, you have checks and balances through litigation or regulation. I'd prefer less of the latter, while keeping the former system functioning soundly. Yes, I'm personally sickened by the degree to which Americans rely on the legal system. I despise the way many Americans sue corporations and even governments for supposed harms and slights that have no grounding in reality (i.e., the Detroit employee now suing the city because she is bothered by fragrances worn by other employees; or those who sue for, say, discrimination based on unequal results rather than any provable acts of discriminatory behavior). Such behavior is costly, annoying, adds burdens to small businesses, puts the kibosh on new medical advances and is, in many ways, a system in need of more limitations – but not too many, lest we lose one of the few checks and balances available to the average citizen. Contact: Steven Greenhut sgreenhut@ocregister.com or 714-796-7823
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