If the Attacks Continue, He’ll Need a Lawyer

My recent observation that Americans are the most litigious people in the world has provoked some irate attacks on my credibility, which were not unexpected.

I am disappointed, though, that only two of them came from lawyers, which suggests that they are not as contentious as I imagined.

David A. Rosen, of Rose, Klein & Marias, calls my column “an uncharacteristically cheap and unsupported shot on our legal system. One of the many myths reported or at least implied (in it) is that there are more lawsuits on file per capita today than there were at other times in American history.”

I did not imply that. We have always been a litigious society, probably a natural result of our freedom, which gives anyone the right to sue his oppressors. I did indeed think, though, that there are more lawsuits today, per capita, then ever before.

Rosen may be right. To verify his statement I checked with Robert Benson, the Loyola Law School professor who has done much to reduce legalese to plain English. By fax, he sent me “The Litigation Explosion Myth,” by Andrew Barlow, a sociology teacher, from the December, 1983, California Lawyer.

Noting that both the former Chief Justice Warren Burger and U.S. Atty. Gen. William French Smith sustained the “myth” and predicted a “legal doomsday” as the inevitable result, Barlow argued that in fact the nation was more litigious in earlier times than today. For example, he notes, in Accomack County, Va., the litigation rate in 1639 was more than four times that of any jurisdiction for which we have current data. (It would be interesting to find out what the folks in Accomack County were so disputatious about.)

I am not convinced. Barlow notes that only about one case in 10 goes to trial today, and that technology and social changes have engendered lawsuits that would have been unthinkable a few decades ago: Students sue schools, children sue parents, players sue coaches, religious orders sue churches; there are more malpractice suits than ever before, and of course class-action suits and suits to secure civil rights, women’s rights and gay rights are commonplace.

Maybe the press is to blame for the apparent litigation explosion. A suit over disputed property lines or a stolen turkey in 1639 was not as good reading as a palimony suit or a contest over the custody of fertilized human embryos.

Whether there is a litigation explosion or not, it is true that many people are too poor to sue for their rights, and most civil suits take years to have their day in court. Corporations can wait.

Rosen also chides me for referring to a trial in “L.A. Law” in which a gay Olympic gold medal winner lost a suit against a manufacturer who reneged on an endorsement contract when the athlete came out of the closet. “It is irresponsible for someone with a readership as large as yours to cite TV shows and movies as an example of how the legal system really works. . . .”

TV shows and movies unfortunately are what most of us rely on for information about any of our institutions. However, I have more than once called the representation of courtroom scenes in TV and movies outrageous; but the case cited is very possible today and in fact I know of a similar suit that is contemplated.

Rosen challenges my remark that “I make mistakes every day and haven’t been sued yet.” He says, “Of course not. You do not provide any specific service to any specific person.” He seems to forget that I am continuously vulnerable to suits for libel. (Could lawyers bring a class-action suit against me?)

He also clobbers my statement that “tort lawyers hold that somebody is responsible for every accident, and it isn’t the victim.” He says, “Victims are sometimes solely responsible for their own harm. My partners and I don’t take cases like that. We take cases where we truly believe that there was a negligent or faulty party and that they should compensate the victim.”

Rosen did not encourage me to sue for the back injury I suffered when I fell while arising from my low swivel chair.

“From the limited facts you gave,” he says, “it appears that you, the victim, were the only one responsible for your accident.”

I’ll bet I could sue on “L.A. Law.”