Bringing Suit: America's Pastime

August 15, 1991

If Vice President Dan Quayle had gone before the American Medical Association instead of the American Bar Association to plead for reforms to reduce the enormous sums Americans pay for legal services, chances are he would have gotten cheers rather than silence and praise rather than a public rebuke f rom the association's leader. Doctors don't like lawyers these days. Nevert heless, Mr. Quayle was in the right forum with the right message.

By almost any measure, the nation's legal system is a mess. The courts are over loaded by an avalanche of civil suits, many of which contain huge claims for punitive damages that drive up insurance premiums, increase the costs of doing business, inhibit the introduction of new products and cede a competitive edge to foreign countries. Ironically, even legal malpractice awards are out of control. Suing is the great American pastime.

The vice president's litany of flaws was a long one, compiled by the President's Council on Competitiveness from a report drafted by Solicitor General Kenneth Starr. It contains a lot more legal scholarship and persuasiveness than the ABA reception would suggest. Separate proceedings to determine and cap punitive damages, limiting the costs of discovering evidence, forcing losers to pay legal and court costs, resolving disputes by other than expensive litigation, establishing guidelines to give greater credibility to expert witnesses -- these are objectives worth studying.

Of course there is merit in ABA's assertion that the courts are there to protect the poor and the victims of negligence. Of course, trial lawyers groups are correct that every American citizen is entitled to his day in court. Of course, consumer advocates need the power to bring suit to protect the public from dangerous products, irresponsible business practice and environmental damage.

But this is not -- or should not be -- an issue in which one side or the other has a monopoly on truth and righteousness. Rather, it is about what is sensible and feasible to correct a situation that the legal profession knows has gone haywire.

The vice president irritated his audience by asking if America needs 70 percent of the world's lawyers, if the country should be paying $80 billion in direct litigation costs per year ($300 billion if you include indirect costs), if it makes sense that 18 million new lawsuits (one for every ten adults) are filed every year. Yet he may have been too gentle. The ABA Journal last year estimated that there will be 1 million lawyers in the U.S. by 2001, a 30 percent increase over present numbers, or one attorney for every 280 citizens.

One can argue that America is an adversarial, litigious, highly competitive society for which Japan, with its paucity of lawyers, is no model. But as the judicial system groans under the weight of both criminal and civil cases, often delaying justice in the process, the American Bar Association should support the general thrust, if not the specifics, of the administration's proposals.

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