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The case against lawyers: An interview with Walter Olson
By Steven Martinovich
Investors's Business Daily once called Walter Olson "America's leading authority on over-litigation," hardly surprising since he's made a career out of exposing the excesses of trial lawyers, a group he calls "the fourth branch of government". Ohlson, a Senior Fellow at the Manhattan Institute, agreed to spare a couple of minutes to answer some questions.
Why are Americans so in love with the lawsuit? Is it just the allure of relatively easy money?
Rules create incentives. Our rules, more than those of any other country, insulate prospective litigants from fear of a downside (specifically, we lack a loser-pays principle). We also allow lawyers to take a share in clients' causes, we award very high damages, and so forth. Give Britons or Canadians a similar set of rules, and they will eventually begin acting a lot more like Americans -- which in fact is an experiment that has been in progress in both countries.
In The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law you argue that America's trial lawyers are damaging the legal system and democracy with lawsuits targeting corporations. How are they doing this?
Mass personal injury litigation has its own coercive logic, its outcomes often unhinged from conventional merit, as in the breast implant affair, where meritless suits extracted billions. The big new development is the use of mass litigation to pursue policy changes that proponents have been unable to obtain through the legislative process. Tobacco was the harbinger, guns are the critical case at the moment, and obesity, global warming and others lie ahead.
You argue in your book that an article written in 1976 was the impetus for an increase in litigation. Who wrote the article and what did they argue?
As part of a book co-edited by (who else?) Ralph Nader, consumerist lawyer Beverly Moore, Jr. and left-wing Sen. Fred Harris laid out a kind of blueprint for filing trillions of dollars in class action suits against virtually every sector of American business. It predicts pretty much every legal campaign you've heard of -- tobacco, junk food -- and some you haven't, such as a proposal to sue automakers for the cost of urban congestion and sprawl. We've been living out the insane logic of that article for the past twenty-five years. It's amazing what you can find hidden in plain sight.
Some people have argued that although many in government, both state and federal, have publicly despaired at the new power of trial lawyers but are secretly happy they're pursuing these huge lawsuits because it allows social policy to be made without a fight in the legislatures. Do you think that's the case?
Yes, there's no doubt that plenty of elected officials would like to duck the unpopularity that comes with taking any definite stand, and happily leave it up to warring litigants to negotiate what the law should be. In the tobacco case, the political class around the fifty states got a huge slug of new tax money for pet programs without the heat of having to raise taxes on smokers explicitly. That's one reason relatively few politicians have been willing to sound the alarm about the many scandals to have arisen from the tobacco deal.
Besides damaging democracy, what other effect is the litigation industry having on the United States?
I mostly leave the "cost of doing business" arguments to others; we're a rich country, and can afford a lot of dead weight loss. What we can't afford is the corrosive sense of injustice, of anyone's property and livelihood being at risk from someone's clever lawyering. The demoralization across much of the medical profession, particularly in fields like surgery and ob/gyn in the more litigious states, isn't just a matter of money. It's scary to lose so many of the best people from where they are most needed.
Explain what you are trying to do with your web site Overlawyered.com.
It started in 1999 as online notes-to-myself about cases and facts that would be interesting to write more about someday. It grew and grew, and soon readers began to send in more interesting material than I could post. It is a bit different from most weblogs in that it is edited above all so as to generate archives useful to someone trying to catch up on some controversy from a point down the road. I am glad to say the media uses it heavily for that purpose, and of course also as a tip sheet on current stories.
Many people have predicted that the fast food industry would be the next target of trial lawyers and recently some suits have been filed. What do you think the chances are of lawyers repeating their earlier successes? Who would you predict will be the next target of the lawyers?
The chief obstacle the lawyers face is not the demented nature of their logic -- which isn't all that different from what worked in the tobacco heist -- but rather the fragmentation of the food business. There are only five or six big cigarette makers, but the typical overeater gulps down the wares of many dozens of producers, prominently including Mom's home cooking. It becomes much harder, first, to convince a jury that a given defendant is the cause, and, second, to cut a deal resolving the litigation.
Do you think it's fair for jurors in these lawsuits to be expected to wade their way through what can be incredibly complicated scientific evidence and decide what's junk science and what's valid? Isn't that perhaps the weak spot for the system, that we're asking average people to play the role of scientists?
What you call a weak spot is what many a prosperous lawyer calls an opportunity. The tendency in many areas, such as low-level environmental spills and obstetric liability, is for trial lawyers to thrive by presenting highly confusing causation issues to jury after jury and wait for the random factor to do its work. There are ways of reforming expert evidence that would not abolish the role of the jury -- in particular, courts could take a greater role in lining up experts beholden to neither side -- but any such reforms will be bitterly opposed by one and maybe even both sets of lawyers.
What's the role of the media in these lawsuits?
Litigators make great sources for the media. They've got information they can credibly say is confidential, obtained by compulsory process from their opponents, and their professional stock in trade is the concoction of a story line making their opponents look absolutely awful. This isn't just a tort phenomenon -- celebrity divorce lawyers do it too -- but as we saw in the NBC Dateline crash-faking scandal, it's a recurring threat to journalistic honesty. What NBC did wasn't original: both CBS and ABC had run faked crash "test" footage in earlier shows.
Both American Indians and African-Americans have been arguing for reparations lawsuits. What's your opinion of reparation suits in general?
I think they're a disaster. Some time ago various progressive thinkers in the law schools decided that the principle behind statutes of limitation had outlived its usefulness -- it impedes "access to justice", don't you know -- and now we're apparently going to discover by painful experience why every civilized society has needed to develop some version of the concept of time limits on suing.
Are you disappointed that after years of promoting tort reform that the Republicans have made few actual moves to do so?
The trial lawyers are very good at blocking action, as we see in the U.S. Senate. But public understanding has advanced. There has been some real progress at the state level, partly confounded by the tendency of trial-lawyer-influenced state supreme courts to throw out legislated reform, as has happened in Illinois, Ohio and indeed a majority of states at one time or another.
Why are trial lawyers so partisan? The Democrats in 2002 actually received more money from lawyers than they did from organized labour.
I'm not sure you will receive this as good news, but they're putting in a bid to become influential in the Republican Party as well. Look for more candidates with stealth (or maybe open) trial lawyer support to cut a big figure in local GOP primaries.
What do you think are the chances Americans will actually see tort reform in the next couple of years?
We took forty or more years to get into this, and we aren't going to get out of it overnight. We're still early in the process of getting the legal establishment to admit there's a problem, but the ABA is not as dead set against any reform as it was even five years ago. Without some debate among lawyers themselves, it will be hard to achieve lasting results.
If given the opportunity how would you reform the system?
No question about it, my favorite reform will always be loser-pays. It tells the body of litigators, "OK, start living up to your rhetoric, by paying for the injuries you cause."
Steven Martinovich is a freelance writer in Sudbury, Ontario.
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