Good Job, Mr. Quayle!


August 31, 1991|By JAMES J. KILPATRICK

WASHINGTON. — Washington -- First off, it was not a ''tirade.'' That is how the National Law Journal described Vice President Quayle's recent speech to the American Bar Association. On the contrary, Mr. Quayle's address was a temperate commentary on some long-festering wrongs in our judicial system. Good job, Mr. Quayle!

Lawyers are the most thin-skinned of all professionals except for newspapermen, who are the most thin-skinned of all. The lawyers sat impassively as the vice president asked, ''Does America really need 70 percent of the world's lawyers?'' Mr. Quayle wondered if it is healthy for our economy to have 18 million new lawsuits every year. He commented upon the ''staggering expense and delay'' that characterize the system.

To these sensible reproaches, the ABA's president John J. Curtin made a stupid reply. Accompanied by quavering violins, he asked his own rhetorical question. If the supply of lawyers should be drastically reduced, ''Who will protect the poor, the injured, the victims of racial discrimination and the victims of violence?'' There was scarcely a dry eye in the house.

Mr. Curtin's dumb response merits no response. Nearly 800,000 now are accredited as ''lawyers'' in the United States. The breed not about to become extinct. Some law firms cheerfully accept their pro bono obligations. Others are not such happy campers.

The spat regrettably obscured Mr. Quayle's main purpose. He was seeking the bar's support for certain vitally needed reforms in the system. He addressed himself specifically to the abuses of discovery,'' to the merits of the ''English rule,'' and to the perils of unbridled punitive damages.

The process of unlimited ''discovery'' is a process by which the big guy can drive the little guy into bankruptcy before a word of evidence has been taken in court. Pretrial interrogatories and depositions, as every litigant knows, can send legal expenses skyrocketing. In one study 77 percent of the responding lawyers confessed to abusing the system.

Under reasonable limitations, the English rule should be adopted in American jurisprudence. It is a model of simplicity: The loser must pay the winner's costs. No procedure could be better drafted to cut down on the frivolous suits that make a travesty of litigation in America. Federal judges now have authority to impose sanctions upon lawyers who abuse the law -- an authority that judges themselves sometimes abuse -- but the principle is sound.

Assume that A sues B on some trivial matter, and thereby puts B to hundreds or thousands of dollars in legal costs. The case at last goes to trial and B wins hands down. Of course A ought to pay -- and pay through the nose.

Mr. Quayle was relaying recommendations of a study group headed by the solicitor general, Kenneth Starr. On the matter of punitive damages the group's modest recommendation deserves careful thought. State legislatures should require that such damages be subject to three steps:

* A trial jury would first decide, on the basis of clear and convincing evidence, whether any punitive damages should be awarded at all.

* If the jury says, yes, punitive damages are in order, the trial judge alone would determine the amount.

* The amount of punitive damages could not exceed the full amount of compensatory damages.

Points 1 and 2 are sound. I am not so sure about the proposed limit under Point 3. There may be cases of such willful and egregious wrong that truly harsh punitive damages may be justified. In the case most recently decided by the Supreme Court, Pacific Mutual v. Haslip, an Alabama jury awarded the plaintiff $200,000 in actual and compensatory damages, and then added $840,000 in punitive damages against the insurance company for the misconduct of a crooked agent.

The Supreme Court upheld the award. Justice Harry Blackmun observed that punitive damages, intended to punish a malefactor and to deter a repeated offense, have been part of American common law for 200 years. The high court, demonstrating its capacity for restraint, would not upset tradition.

But Justice Sandra Day O'Connor, in lonesome dissent, warned that punitive damages, imposed indiscriminately, ''have a devastating potential for harm.'' She pleaded for meaningful standards that would prevent juries from acting maliciously or capriciously.

This is all the vice president was urging. If the organized bar does not understand the need for these reforms, something is sadly wrong with the organized bar.

James J. Kilpatrick is a syndicated columnist.

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.