Surfeit of Civil Suits Is a Crime, Advocate of Tort Reform Says

When lawyer Robert V. Wills and his wife asked for a doggie bag at the end of their meal in an Irvine hotel last year, they were surprised to learn that the hotel no longer supplied bags for leftovers.

The manager explained why: A guest who left a doggie bag in her car overnight became ill after eating her leftover steak the next day. So she sued the hotel. To avoid further lawsuits, the hotel discontinued providing bags for diners’ leftovers.

During a morning horseback ride while on vacation in Teton National Park, Wills asked the wrangler why they occasionally trotted but never galloped their horses. Galloping, he was told, is no longer allowed in the national parks: The risk of injury is too great.

And on a visit to Carmel, Wills’ wife, Maralys, was told at a bicycle shop that it no longer rents bikes: The fear of lawsuits outweighed the economic benefits.

According to Wills, these are just a few examples of how lawsuits--and the fear of lawsuits--are affecting the quality of our daily lives.

It’s not difficult to come up with other examples in what Wills calls the era of “free and easy litigation”: hotels and motels that have removed diving boards from their swimming pools, public parks that no longer provide certain playground equipment, and obstetricians who are more likely to deliver babies by Cesarean section.

“Society,” says Wills, “is litigation scared and everybody is starting to pull in their horns because of litigation, and it’s actually affecting our freedom.”

In his new book, “Lawyers Are Killing America: A Trial Lawyer’s Appeal for Genuine Tort Reform” (Capra Press), Wills calls for a major reform of the tort litigation system, the legal method by which we correct civil wrongs (torts). That system, according to Wills, has grown to such an unwieldy size that negligence and malpractice suits are helping to create a virtual logjam of cases on the civil side of the court calendar.

“My basic theme is not the fact that the system is straining and going to fall apart. The inspiration for the book--the point I’ve been observing for 37 years--is that the system is not fair to defendants,” said Wills, 63, who lives in the Lemon Heights section of North Tustin and specializes in medical malpractice from his Tustin office.

“I don’t think it’s fair to be able to sue somebody willy-nilly, drag them through litigation for four or five years, and then if I (as a plaintiff) lose” to be able to simply walk away.

Wills said the increase in tort litigation began after World War II, “but in the past 15 years, it’s been horrendous.”

The litigation explosion, he said, has been fueled by a more litigation-minded society; appellate court decisions, which have expanded concepts of liability; and an “astronomical increase in the number of lawyers”--now numbering about 110,000 in California and some 8,000 in Orange County.

All of this, Wills said, “is partly based on the fact that we have the contingency fee system of litigation,” in which the plaintiff is not required to put up any money except for records, depositions and experts--costs which are often advanced by the plaintiff’s attorney against any recovery.

“The fact that litigation is risk-free means the plaintiff can attack you and put you through the legal mill for five years or more without any real risk,” he said.

In “Lawyers Are Killing America,” Wills chronicles the ways in which the staggering costs created by the “rising tide of litigation” are paid for by consumers in direct and indirect ways.

Increasing liability insurance costs are, he said, a direct and obvious consequence of litigation. Nearly two-thirds of insurance premium dollars go to attorneys on both sides.

Wills maintains, however, that the indirect costs of litigation are even greater than insurance premiums.

They include the efforts of manufacturers and service companies to avoid litigation: Paying for legal departments and outside lawyers, in addition to the safeguards they build into their products and services to make them “idiot proof.”

“That’s an expression that came out of the litigation system meaning you have to design something or provide something in ways the most stupid, reckless person won’t hurt himself,” Wills said.

“All of this litigation consciousness, all of this design and engineering to keep an idiot from hurting himself, does produce some safety. I just want the public to know how much they’re paying for it.”

As a boy growing up in Vermont in the 1940s, Wills recalled, “you skied at your own risk. It was just assumed skiing was high risk. We had a doctrine of the law then called assumption of the risk.

“You wouldn’t think of suing a ski resort because you ran into a tree or fell into a hole. That was 1940. In 1975, somebody sues a Vermont ski resort because of some condition they ran into and won. Now lift tickets are 25 or 30 bucks. Part of that fee is because ski resort operators now have a liability that’s been created by lawsuits and appellate court decisions.

“The assumption of the risk doctrine is out the window.”

To help cut the volume of litigation, Wills proposes that California establish a program in which cases involving expert testimony are screened by a panel of experts before a trial.

Such a system, which Wills says is relatively inexpensive and informal, is already in operation in Indiana and Massachusetts to screen medical malpractice cases. The plaintiff submits his medical records to a panel of experts and after reviewing the case, the panel writes its recommendation to either settle or deny the claim.

“If you don’t like it you can go ahead,” Wills said, “but if you go ahead, that report is admissible in the trial. There also are caps on how much you can get” in a medical malpractice action.

Change should also be made at the other end of a lawsuit, Wills said, “to give the defendant something who has been dragged through a trial, vindicated and then spit out” with no compensation for his time, loss of income and emotional expenditure.

Wills does not refrain from criticizing members of his own profession for being part of the litigation explosion.

There are, he said, “a lot of attorneys out there in general practice who don’t specialize in one field and they’re just hoping to get five, 10, or 15 grand out of a case in settlement without having to go to trial.”

The tort system, he said “is a bonanza for attorneys on both sides.”

“I built this building out of fees defending defendants, mostly paid by insurance companies because most defendants are insured. So you might say I’ve prospered from the system I’m criticizing. But I just don’t think it’s been fair to my clients.”

Wills said he wrote his book not as a lawyer, but as “a citizen who has worked within the (legal) system for 37 years.

“I suppose I’d be called a legal whistle blower, except that I’m not,” he said. “I’m not criticizing any particular people. I’m just claiming the system is feeding on itself and is going to defeat the legitimate claims by closing the courts and abusing the defendants.”

But change in the tort litigation system, if it comes, won’t come easy, he said.

“The change will not come unless the public gets excited,” Wills said.

“First, (the public has) to get educated. They’re getting hurt, but they don’t know how. They just know their auto premium is too much, but they don’t know that they’re paying everyone else’s premium in the cost of products and services.”

For change in the tort litigation system to occur in California, Wills believes it will have to come through the initiative process.

“I don’t think judges or attorneys are going to change the system,” he said. “Only public demand will get the legislators to . . . make any basic change in the system.”

Wills, however, has no intention of spearheading such a drive.

“I enjoy my life as it is; it’s complicated enough,” he said. “I will not become a political activist.”

Isn’t he, in writing a book called “Lawyers Are Killing America,” biting the hand that feeds him?

“Killing the goose that lays the golden egg?” he said, chuckling. “No. 1, it’s going to take a hell of a lot more than me--or even a bestseller--to kill that goose.

“I’m probably a voice in the wilderness.”