I am a lawyer-basher and proud of it. Most American lawyers abhor the English rule. It requires the losing side in a civil suit to pay the winning side’s attorneys’ costs. This approach would discourage weak or frivolous suits, while encouraging defendants to settle strong suits against them. More generally, it would promote new and less costly ways of resolving conflicts aside from litigation.
What’s wrong with lawyers is that they have an economic interest in cultivating and prolonging conflict. This means they are fundamentally at odds with the purposes of the legal system. Courts and lawyers exist only to explain and enforce the rules society sets for itself-and settle disputes arising from these rules. Ideally, the system should minimize conflicts by ensuring that the rules are clear and that disagreements are resolved rapidly. The trouble is that lawyers’ well-being runs in the opposite direction. The more conflict, the better. The more cumbersome and ambiguous society’s rules, the better.
The increase in crime, divorce, regulations and government accounts for much of the rise in lawyering. But things have gone beyond that. Lawyers pander to the American illusion that all problems have legal solutions, and the result is a society that requires lawyers to do almost anything. We now have more than twice as many of them as in 1970 (805,000 in 1990 versus 355,000 in 1970). Our courts are clogged. In 1990, the number of cases filed in state courts topped 100 million.
A lot of the congestion reflects soaring criminal cases; in the federal courts, criminal filings have increased 69 percent since 1980. It’s not helpful, though, to whine (as the American Bar Association does) that the court system is ,‘starved for resources" or plagued by “underfunding.” The proper response is to ask: can we unclog the system - use it more wisely-by slowing the stream of other disputes that reach court? The answer is “yes.”
Our civil-justice system begs for improvement. What we are talking about here is a wide array of suits for private damages. Contracts. Personal injury. Product liability. Medical malpractice. Employment discrimination (racial, sexual and age). Fraud. Libel. Environmental damage. The list of activities subject to litigation has mushroomed. As society’s sensibilities have broadened, new laws have established more “rights.” In addition, lawyers have effectively created other rights by persuading courts to expand legal doctrines: for example, “wrongful termination” (in effect, being fired unreasonably).
Up to a point, these new rights represent a major advance. They empower individuals and protect us against huge, potentially arbitrary bureaucracies. The threat of being sued can be a useful social discipline. But the recourse to law must also operate smoothly and sensibly. Otherwise, new rights may be more theoretical than real. Or their existence may impose other large costs on society. The civil-justice system now invites just such abuses.
It encourages suits and legal delays. Consider a simple example. A sues B for $100. Assume that A’s case is weak, but that defending it will cost B $20. There’s a powerful incentive for B to settle for $19.99. Next, assume that A’s case is strong - and that B knows it. Now B is tempted to stretch out the case, increasing A’s costs to force a smaller settlement (say $50). The English rule minimizes these problems. In my first example, B might not settle A’s weak case. If A pursues the case and loses, A pays B’s attorneys’ fees. Chances are that A wouldn’t bring the case. (In my scheme, a contingency-fee lawyer-who shares any award or settlement-would pay the other side’s attorneys’ fees in a losing case.) In the second example, B might not delay. If A wins, B would pay both a higher award and A’s attorneys’ fees.
Naturally, lawyers detest the English rule. It would force them and their clients to evaluate the merits of a case, rather than “gaming” the system. It would prod them to cut litigation costs (less discovery, fewer depositions) and to resort to “alternative dispute resolution” (mediation, arbitration or mock trials). The usual objection to the English rule-that it would prevent suits by poor people against big companies-is a straw horse. No poor person can actually sue a big company today. Suits are effectively brought and financed by contingency-fee lawyers. They could still easily bring strong suits. But bringing weak suits would be riskier and potentially more expensive.
Much of the legal system now exists for the well-being of lawyers and only incidentally for clients. The social costs transcend actual litigation. The protracted nature of legal disputes exacts an enormous psychological toll on people, regardless of who wins. The rising threat of suits feeds mistrust and inspires more elaborate contracts. There’s more precautionary behavior: defensive medicine is practiced; new products are withheld, if they might somehow provoke a suit. All this requires more lawyers. The biggest-and least visible-cost may be all the talent that is drained into an essentially unproductive occupation.
Lawyer-bashing is increasingly popular. More companies are trying to cut legal bills. Vice President Quayle last year condemned lawyers for their costly ways. The Bush administration is proposing a small experiment with the English rule. A few lawyers even tout it publicly. " I would think real, real seriously about adopting the English rule," says lawyer and novelist Scott Turow (“Presumed Innocent”) in a Business Week story on legal reform.
It’s doubtful any of this will lead to more than cosmetic reforms. Too many legislators are lawyers. Too many lawyers are more committed to their own economic interests than to a sensible legal system. As a group, lawyers simply won’t face the contradiction between their incomes and their professional responsibilities. The only real hope for change comes from a small but rising number of (yes) legal malpractice suits. If enough lawyers become victims of today’s system, they may grasp the wisdom of changing it.
