Philip K. Howard
If the American public doesn't get a better understanding of the corrosive effects of living in a lawsuit culture, the very functioning of society will be at risk.
In his essay, "Making Civil Justice Sane," Philip K. Howard, founder of the bipartisan think tank Common Good, argues that judges should stop unreasonable civil lawsuits before they start by evenly applying established standards of responsibility.
But because they haven't, America operates under an ad hoc civil justice system "without meaningful guidelines or limits," causing disorder in schools, unaffordable healthcare and a "pall over life's simple pleasures," according to Howard.
"Hardest hit are activities that are optional," he wrote in the spring issue of the City Journal. "Fun, for example, is fraught with fear. Schools ban dodgeball and tag. Jungle gyms, diving boards, and seesaws seem relics of some past civilization. Meanwhile our children, rescued from the risks of roughhousing and accident, suffer from the far greater risk of obesity, now at epidemic proportions."
Common Good is comprised of diverse leaders from across America's political spectrum including George McGovern, Bill Bradley, Howard Baker, Newt Gingrich, Griffin Bell and others.
Howard writes that it is up to judges to be guardians of reasonable choices, "constantly making rulings that draw the boundaries of reasonable dispute," but instead the current judicial orthodoxy has become "Who am I to judge?"
"Judges have forgotten that lawsuits concern not only the parties to the dispute but everyone in society," wrote Howard. "The mere possibility of a lawsuit changes people's behavior. That's why judges must draw boundaries as a matter of law."
Juries are supposed to decide disputed facts, but instead have assumed the role of limiting risk and deciding what trade-offs are good for Americans, such as safer, but more expensive cars.
Howard states that the direct costs of litigation are significantly greater in America than any other developed nation, and argues that the indirect costs are "debilitating, infecting daily dealings with distrust and defensiveness."
He believes plaintiffs' attorneys have successfully shaped public opinion to believe that "reform" connotes losing their right to sue.
"The phrase 'the right to sue' has magical powers," he wrote. "All the trial lawyers need to do is pound the table -- 'they're trying to take away your right to sue' -- and instantaneously reformers are on the defensive, muttering about the need to curb frivolous cases."
Howard writes that access to courts is a core American value, but that even so-called frivolous claims require someone with authority to establish that they're frivolous.
"What the public needs to understand is that the right to sue has no substance without the rule of law. Rights without law do not protect freedom but undermine it," he wrote.
"Let the lawyers increasingly isolated by their self-interest, talk about the right to sue. We should talk about the rule of law and how it should support the functioning of a free society."
In some respects Howard believes the tort reform movement has succeeded through measures adopted by state legislatures and congress, as well as federal and Supreme Court rulings.
But, he believes society "has a long way to go" toward recognizing that their daily choices are adversely affected when the rule of law does not prevail in America's courts.
He said that civil justice reform has so far focused on "crazy verdicts," such as hot coffee personal injury cases and on tort reform, such caps on damages and joint and several liability.
"But it has not by and large focused on the harm done to daily choices of Americans," he said.
"Law has become something people fear, instead of something to trust," he said.
Howard said leadership for change needs to come from several sources, including an informed public, appellate court decisions and legislative action.
"Legislatures need to impose greater obligations on judges to set boundaries on claims," he said. "People should no longer have a free ticket to legalized extortion."
Howard suggested that media step up its coverage of problems in the courts and that political leaders need to make civil justice reform a part of their platforms.
He also said that a broad coalition of diverse interests needs to come together to restore fairness in the nation's courts.
Local attorneys had varying opinions on Howard's thoughts.
Elliot Hicks, a defense attorney in the Charleston office of Hawkins & Parnell, said Howard's writing was thought-provoking.
"I thought his tae was very interesting in recognizing the fact that a lot of the effects of lawsuits are evident in society," he said. "And that's a shame.
"I've always said the cost of lawsuits is huge. Even settlements. But you don't hear about settlements."
Hicks said he agrees with most of what Howard says.
"I worry that we have infantilized society by making them think government will protect them," Hicks said. "People depend on someone to tell them what to do.
"People need to decide for themselves what they do and the consequences they'll suffer. People need to watch out for their children themselves."
Kent Carper had a different view. He called it a poorly written "rerun of tripe."
"This is trying to do more damage to people who serve on juries," said Carper of the Charleston firm of Hill, Peterson, Carper, Bee & Deitzler. "To put them in a mindset that any compensation for an innocent victim is bad."
Carper, also president of the Kanawha County Commission, said businesses are the biggest users of the civil justice system, but "you never see the criticism when businesses square off."
The bottom line, Carper said, is simple.
"Where do you go if you've truly been wronged?" he asked. "You go to court."
Nitro attorney Harvey Peyton said he doesn't agree with Howard's views, but said it is a good statement of that side of the argument.
"I think it pretty well sets out the position of the vested interests on the manufacturers', bankers' and insurance side of the debate," said Peyton, who also is president of the West Virginia Trial Lawyers Association. "I would like to sit down with this man and talk about specifics of both claims AND defenses that are making the system unattractive.
"No one should argue that the basis of the justice system is not twofold – provide individual redress and promote the general social good. The question is how those interests are properly balanced without putting too much of the burden on either side of the equation."
Charleston attorney Harry Bell said the polarization and explosion in the number of attorneys in recent years has had a major impact on the legal system.
"The attorney who can advise his client to acknowledge problems when a client is truly wrong and then help the client resolve the concern in a fair fashion is the hallmark of a skilled and mature counselor," said Bell of Bell & Bands. "Sadly, too many attorneys today may be telling their clients what they want to hear instead of what they need to hear.
"That problem exists on both sides of the v as certain 'plaintiffs counsel' are equally bad at doing this as are 'defense' counsel. Until that changes, we will have too many cases crowding out the legitimate claims which beg for fair and prompt resolutions in our courts.
"With judges strong and independent, beholden to no special interest, there is hope."