In Love with Lawsuits

BACK BEFORE CLAUS VON BULOW ever heard of Jeremy Irons, a judge who found the news media’s attitude toward the case puzzling put a question to a friendly television reporter.

“Why do you people treat this as a big-deal court matter? It’s not precedent-setting. The lawyers are good, but they’re hardly headliners. You don’t even have a murder. Nothing, in fact, but sex and money.”

“What else do you need?” asked the reporter.

Well, one would have to admit, nothing, if the legal system’s role is entertainment. In a sense, we do think of the courtroom as theater. Every trial is inherently a dramatic production, a play, with plot, actors, audience, even authoritative critics whose collective review permanently determines success or failure. Perhaps that is why from the country’s earliest times ordinary people have derived pleasure from merely watching lawsuits.

A great judge, Learned Hand, once ranked litigation with serious illness or death as an experience to avoid. He was speaking, however, to the actual participants, not to the bystanders. Lawsuits have always furnished us with entertainment—not merely the catharsis of stage drama but the vicarious triumph and defeat of an athletic event. Litigation, after all, is also spectator sport, with clearly definable winners and losers and an identified stake. Criminal prosecution, medical-malpractice trial, libel suit, or child-custody battle—all of them engage our voyeurism and our vicarious participation. We exult with the victor, or we take from our commiseration with the vanquished the satisfaction of knowing that the problem is not ours.

In a country where stage plays were at best rare commodities, if not entirely illegal (Massachusetts barred them until the 1790s), and newspapers appeared much less frequently than daily, the circuit court, coming to the county seat once or twice a year, provided the only live entertainment. When the main show included a conviction for murder or rape, the pastime produced a coda: public execution.

Law, as opposed to in-court activity, has always permeated American society. Our basic charters are, after all, nothing but legal documents: the Declaration of Independence, a wide-ranging indictment of George III; the Constitution, a carefully drafted tripartite contract among people, states, and national government. It hardly surprises us, therefore, that in Tocqueville’s famous phrase, every political issue turns sooner or later into a legal question.

This acute observation deals, however, with what one might fairly call the governmental role of law. It perceives law as a dominant, pervasive spirit, controlling and regulating the overall working of the entire body politic. Yet, at about the time that Tocqueville was sketching that magisterial view of law in the new country, another visitor was noting American attachment to law on a different, more personal level.

“The Americans are fond of law in one respect,” wrote the English novelist Frederick Marryat in 1837. “That is, they are fond of going to law. It is excitement to them, and not so expensive as in England. It is a pleasure to them which they can afford, and for which they gladly pay.”

Law thus served to amuse not only the spectators but also the participants, while providing a channel for energies that unchecked might have strained or torn the social fabric. Marryat’s comparison of English and American legal costs highlighted a significant feature of litigation here: the loser paid only his own expenses. In England, he also footed the winning lawyer’s bill.

For the parties a lawsuit replaces physical combat. It permits them, as the Massachusetts federal judge Charles E. Wyzanski. Jr., once remarked, to “wager money instead of exchanging bloody noses.” Even during seasons of serious political unrest, the legal process has supplied a substitute for violence. In pre-Revolutionary Boston, for example, a coffeehouse scuffle between the radical whip James Otis and a royal customs commissioner, John Robinson, quickly translated into an action for damages. When Otis not surprisingly won, he accepted only so much of the two-thousand-pound verdict as covered his medical and legal expenses.

AT ABOUT THE SAME TIME, THE BOSTON TORY bookseller-printer-newspaper publisher John Mein learned how the legal process could accomplish direct political ends. A Scot, and thus ethnically unpopular in a society that regarded Charles Stuart as neither a prince nor bonnie, Mein had enraged the radicals by his hard-hitting journalism.

In one of the earliest examples of American investigative reporting, Mein had printed in his Boston Chronicle customhouse records that exposed local merchants who had pledged not to import British goods but were breaking their own boycott. He also proved himself a skillful political satirist, verbally caricaturing the anti-British leaders with such close-to-the-bone sobriquets as “Muddle-head,” for the wild-talking, alcoholic Otis, and “Johnny Dupe, Esq., alias the Milch-Cow,” for the flattery-hungry John Hancock, whose large fortune made him the principal financial backer of the radical cause.

By the fall of 1769, the resentment had bubbled into violence. After a direct personal assault on the pesky Mein, the radicals literally ran him out of Boston. Hancock, however, using the law ruthlessly, achieved a more permanent revenge, guaranteeing that even if Mein returned, he would never again produce a newspaper.

Like most colonial merchants, Mein depended for his stock-in-trade on English suppliers, to whom he was perennially in debt. Well acquainted with Mein’s London creditors, Hancock undertook to act for the two largest, armed with their powers of attorney. It took almost three years; but when Hancock finished, all of Mein’s printing equipment had fallen to a sheriff’s execution sale, and the “scourge of patriots” had faded into newspaper history.

THE MELDING OF LAW WITH THE NATIONAL PSYCHE manifested itself even at times of severe civil disorder. Immediately after troops fired on a Boston mob on March 5, 1770, killing five men, a crowd ready for more violence milled around the Town House (today the Old State House), seat of the Massachusetts provincial government. From the balcony the acting governor, Thomas Hutchinson, a former Chief Justice, addressed the people, urging them to go home. “The law shall have its course,” he said. “I will live and die by the law.” Most of the throng heeded his plea, as if instinctively aware that the normal legal process could deal even with Boston’s bloodiest night.

Litigation has, however, meant more than a safety valve for the population’s discontent. Lawsuits generally concern money, and money as the object of a contest in turn generates recompense for the lawyers. It is not entirely coincidental that the leader of the consortium that recently bought baseball’s Baltimore Orioles has, with conspicuous success, represented more claimants for asbestos-related personal injuries than any other Maryland lawyer. (A former Orioles owner was Edward Bennett Williams, another highly successful attorney.)

Concern for the financial aspect of law and lawsuits has always afflicted the bar’s evaluation of its role. John Adams complained in the 1760s of the oncoming new lawyers: “They swarm and multiply.” The practitioners established rules for admission to practice and advancement after admission. Ostensibly, these assured the public of competent professional service. If regulating entry into the profession also prevented untoward dilution of the bar’s rewards, well, that was only a fortunate by-product of quality control.

Even then, the law was too much of a profession to be a business—and too much of a business to be a profession. When in 1774 the Massachusetts Superieur Court of Judicature made its annual circuit to “the eastern Counties” (now Maine), Adams’s friend and fellow radical Josiah Quincy, though already wracked by the tuberculosis that would kill him within a year, “drove forward, I suppose that he might get upon the fishing ground before his brother Sam, and me,” trolling for clients.

It is neither immoral nor cynical to note that courtroom civil law—that is, any noncriminal trial—involves money, even when it does not appear to. Consider the most familiar form of civil litigation, a claim for money after personal injury. To an intelligent foreign observer, it sometimes seems as though Americans feel that whenever something bad happens to a person, someone else should pay. That, the observer might conclude, is the reason why courts are forever deciding that what appears to be perfectly blameless behavior results in liability to pay money damages.

Medical malpractice is an excellent example, or so doctors think. Why, they wonder, should a dedicated, hardworking physician have to pay, merely because the medical result was less than perfect? Passing over the thought that the patient owed his unsatisfactory final condition not to bad luck but rather to bad treatment, the answer is that society has determined that certain types of misfortune will rate financial recompense.

Of course, this determination did not depend upon a visible plebiscite. Nonetheless, the decision was as definite as if it had. The plaintiff won money damages because the law, the ultimate expression of society’s will, said he was entitled to make the claim, and because a jury, representing society’s view of the particular case, said the claim was valid.

AS OLIVER WENDELL HOLMES OBSERVED a century back, every so-called legal decision is at bottom an expression of public policy: “When a child of 6 (he wrote his friend Lady Clare Castletown, in 1897) puts her hand into a coffee-grinder in a shop and gets her finger taken off and we say she can’t recover because she was hurt in consequence of unlawful intermeddling, we are saying in effect that it is more desirable that property should be respected and protected even from a harmless touch than that one too young to look out for herself should have her finger kept on—not necessarily an absurd proposition but one which wouldn’t be so popular if stated that way!”

Although Holmes and like-minded thinkers did not articulate the idea publicly, the law had concluded that manufacturers met their social obligations by the mere act of providing needed products. Any injuries resulting from the manufacture or use of the products ought to be considered simply a cost of progress, to be borne by society. At any rate, burdening the manufacturers would simply deflect economic energy and discourage further investment in socially useful industries.

Gradually a different concept began to emerge. Spurred by the investigative journalists known collectively as the muckrakers, by the prophets of the movement to conserve natural resources, and even by novels like Upton Sinclair’s The Jungle and Frank Norris’s The Octopus, the country’s social conscience enlarged perceptibly, at least to the point of recognizing that it was not society generally but usually helpless individuals who in fact paid “the cost of progress.”

Actions of tort—that is, lawsuits for money damages— had always been available. But the courts, through an arsenal of legal principles, had made the remedy easier to seek than to obtain. If, for example, the plaintiff had failed to exercise reasonable care for his own safety, he could not recover at all, even though his negligence had been slight and the defendant’s great. In addition, if the plaintiff was an employee suing his employer, and the person whose negligence caused the injury was a fellow employee, that negligence did not infect the employer. Finally, if the injury resulted from the nature of the task, the law regarded the worker as having assumed the risk. This constellation of common-law rules produced a cruel paradox: An employer owed a lesser duty to his own workers than to an outsider injured by the operation of the business.

AS THE NINETEENTH CENTURY ENDED, REVULSION against the system’s unfairness provoked the state-by-state adoption of a legislative remedy, the workmen’s compensation acts. Their principle, simply stated, was that someone injured at work was entitled to payment for his medical expenses and lost wages. Only the fact of workplace injury mattered, not who caused it, or how it happened, or even the injured worker’s own negligence.

Like most good things, workmen’s compensation had drawbacks. Although payment was certain and generally easy to obtain (the biggest problems, usually, were proving that the worker’s disability had in fact resulted from an on-the-job incident and the extent of the disability), it covered only a portion of the wage loss. More significant, workmen’s compensation paid nothing for intangible pain and suffering.

The law had always distinguished between injury intentionally inflicted (for example, a punch in the nose) and injury caused by negligence (as when a careless wagon driver ran over a pedestrian). In Holmes’s memorable phrase, “even a dog distinguishes between being stumbled over and being kicked.” It was not, however, until the 1840s and the proliferation of steam-powered machinery that the courts began facing substantial numbers of claims for personal injuries arising out of negligence: railroad accidents, industrial mishaps, falls in stores, and a torrent of similar misfortunes.

Industrialization and the growth of mechanized transportation multiplied the numbers of people likely to suffer serious injury. These injuries, moreover, resulted from the activities of enterprises not only fiscally plump but endowed with substantial additional financial resources by the proliferating insurance companies. In these “personal injury” suits, plaintiffs, if successful, could recover not only their medical expenses and lost pay (so-called special damages) but also whatever the juries might award as monetary balm for the mental anguish the injuries had inflicted.

Almost always the injured person had retained a lawyer to represent him, not by paying a fee in advance or even by promising to pay the attorney for however much time he spent. Instead the lawyer agreed to take payment only out of such proceeds as the lawsuit might generate. The fee, in short, was entirely contingent on the lawyer’s obtaining a favorable result—money damages from the railroad, the manufacturer, or the store owner.

BY THE MIDDLE 1800S THE ENSHRINEMENT of the contingent fee was complete, making litigation a contest that anyone could enter. True, eligibility did depend on the presence of an injury. The harm, however, need not be physical. A woman libeled by a newspaper, a customer fleeced by a fraud-peddling salesman, a client harmed by a lawyer’s bad advice—all could find an attorney who would, for nothing more than a share of the possible recovery, commence legal action against the malefactor.

Because it makes lawyer and client co-venturers in a very real sense, the contingent fee arrangement has always drawn detractors. Even its most valid justification —that “the poor man’s fee” offers legal relief to those who otherwise could not afford a remedy—has provoked the disdain of some bar leaders, those lawyers with clients wealthy enough to pay per-hour fees, and even many judges. The distinguished Boston lawyer Moorfield Storey was speaking for many when in 1911 he damned the whole concept of personal-injury litigation as “frequently legalized piracy.”

AS EARLY AS 1305, AN ENGLISH ORDINANCE had even defined champerty as a crime, and champertors as “they that move Pleas and Suits, and sue them at their proper [i.e., own] costs [i.e., expense], for to have part of the land in variance [i.e., in controversy], or part of the gains.” Three centuries later Francis Bacon was railing at “sowers of suits; which make the Court swell, and the country pine.” In the 1760s William Blackstone’s Commentaries on the Laws of England , the underpinning of early American legal theory and practice, labeled champerty “a practice so much abhorred by the law” and champertors “these pests of civil society.”

Early in the 19th century, the great American judge and author James Kent added his thunder: “The purchase of a lawsuit by an attorney ... is champerty in its most odious form; and it ought equally to be condemned on principles of public policy. It would lead to fraud, oppression, and corruption. As a sworn minister of the courts of justice, the attorney ought not to be permitted to avail himself of the knowledge he acquires in his professional character, to speculate in lawsuits. The precedent would tend to corrupt the profession, and produce lasting mischief to the community.”

CHIEF JUSTICE ISAAC PARKER OF MASSACHUSETTS chose to ignore the distasteful trend. “Probably,” he wrote in 1823, “the practice of encouraging others in lawsuits, by advancing the expense and taking the compensation from the proceeds, was formerly more frequent and more mischievous than in modern times.”

The judicial establishment could only grumble. Champerty was losing its opprobrium. In 1835, Chief Justice John Bannister Gibson of Pennsylvania, using the modern label, was conceding the possible “legality of contingent fees,” although they were “not to be encouraged by implication, from a questionable usage, nor established by less than a positive stipulation.” Eight years later Gibson’s court admitted that the practice, although “a subject of regret,” had become general.

When, in 1848, the reformer David Dudley Field prepared New York’s Code of Procedure, his product, in the disgusted phrase of George Sharswood, another Pennsylvania chief justice and the author of America’s first treatise on legal ethics, “changed the law ... to enable parties to make such bargains as they please with their attorneys.” Other states followed New York’s lead. By 1900 “personal-injury litigation” and “contingent fee” had become a smooth-stepping tandem, pulling the courts along.

WHATEVER THE ARGUMENTS IN ITS FAVOR, an arrangement that permits (some might say encourages) cost-free participation in an enterprise offering a possible large payout is nothing more than a sophisticated, albeit socially justifiable, lottery. Indeed, regardless of the attorney’s fee structure, a suit to recover for injury, physical or otherwise, is, in every sense of the word, a straight-out gamble.

The main element of chance, recognized by everyone who spends any time in or around the court system, is the trier of fact, almost always the jury. Here I must confess a strong personal belief that for deciding the kinds of issues likely to arise in tort litigation, twelve (or, in the federal system, six) heads are better than one. Yet I accept the courthouse wisdom that a jury trial is merely expensive dice rolling. So widespread is this belief that, ever since, we have been keeping serious statistics, the nationwide settlement rate has hovered at around 95 percent. Thus only five of one hundred civil cases go the full forensic distance. In all the rest the parties do not wait for the jury verdicts; instead they reach their own negotiated settlements. Crowded dockets and greater pre-trial “discovery” (forced exchange of information) may, as Judge Wyzanski suggested in 1952, increase the pressure to settle.

The concept of the lawsuit as a bettable event affects even nonlitigants. People give a “big” trial the same avid attention they lavish on other forms of competitive entertainment. If the jury confers on the plaintiff a handsome return, we all share the winner’s joy, just as we relate to the triumphant Super Jackpot Sweepstakes ticket holder.

Big-winnings plaintiffs always attract publicity, but the media almost always ignore those unfortunates who, despite frightful injuries, fail to persuade the jury of the defendant’s fault. In part this reflects the American obsession with finishing first. Remember Vince Lombardi: “Winning isn’t everything; it’s the only thing!” The journalist’s view of litigation also reflects our collective tendency to regard an event’s significance as directly proportional to the dollar amount it entails.

Whatever the social underpinning, the result is a national frame of mind, an article of faith, really, in which a court proceeding seems to become less an effort to ascertain the truth or to effect justice, or even to obtain a remedy, and more and more a riskless, cost-free game of chance. I say seems , because to the seriously injured person with large past and future financial losses, the uncertainty inherent in a trial poses the substantial risk of not obtaining any money at all.

True, the contingent-fee arrangement allows even the most indigent claimant to have a day in court. Yet it is equally true that in the event of a settlement or a favorable verdict, the fee, set as a flat percentage of any sum recovered, need not, and often does not, reflect either the time or the effort involved.

Lawyers have always justified the apparent unfairness by reminding us that whenever a plaintiff loses, the fee is zero and that, as a 1908 New York State Bar Association report piously observed, “it is perfectly fair that the attorney should receive an increased amount for the risk he runs of getting no remuneration at all.” That, however, is an economic argument pertinent only to the attorney, not to the plaintiff. Why should the lawyer’s lack of success for client number one increase the fee charged client number two? Why should a winning client subsidize the attorney’s unsuccessful efforts on behalf of anyone else?

Perhaps irrational, unfair, unequal treatment of litigants is merely the price society pays for a system that at least ensures an injured person access to a chance of justice. The cost is heavy, and not merely in a rhetorical sense. The litigational sub-industry that has sprung up around the thousands of claims for injuries resulting from asbestos exposure has, in a real sense, corroded and corrupted clients, lawyers, witnesses, and courts. “Corruption” here of course means not that decisions have been dishonestly obtained but rather that justice, in the sense of fair results based on case-specific facts, has succumbed to the pressure of the numbers.

TO FURNISH THE VAST THRONG OF ASBESTOS-AFFECTED CLAIMANTS, even incomplete justice and to conserve the funds available for paying the claims, a settlement process has emerged that is cumbersome, impersonal, and, above all, expensive. Of every insurance dollar, 67 cents goes to “transaction costs”—largely, but not entirely, fees for the attorneys on both sides. The courts, which in a less imperfect world would try to bring some order and fairness to the chaos, are helpless. A judge with five thousand asbestos cases on the docket will seize any opportunity to “move the business” and winks (or grimaces) at wholesale settlements that at least have the merit of bringing litigation to closure, whatever their individual inequities.

ASBESTOS LITIGATION, AND, FOR THAT MATTER, personal-injury litigation generally, by no means exhaust our national appetite for litigation. We tend to regard litigation as the panacea that will cure all society’s ills—quickly, painlessly, and cheaply. Legislation is slow, and the electoral process expensive. Much better just to start a lawsuit. From school desegregation to redressing gender imbalance to ensuring fair voting districts, we take all our problems not to church but to the courts. No wonder that the wisest of our judges, Learned Hand, once cautioned against resting our hopes “too much upon constitutions, upon laws and upon courts.”

Litigation is not merely our political crutch. It is our opiate, drugging our will to resolve our own problems, person to person. We go to the law these days for such matters as the Cracker Jack box that lacked a prize, the prom date’s defection, the lost-and-found lottery ticket. A Superior Court colleague of mine once had to devise visitation arrangements for a pet dog, the subject of a bitter intra-familial ownership contest. Another had to decide if a 15-year-old defendant should give back the thirteen-year-old plaintiff’s birth-control pills.

Litigation offers still another anodyne. It helps us fritter away our leisure. From the media frenzy over the von Bulow case, we have moved (I could hardly say advanced) to the ultimate in court coverage, start-to-finish live video dramas, starring real people—sometimes even starring real stars, like O. J. Simpson. Televised trial action, with instant replay and hush-voiced commentators providing tactical analysis and “color,” has brought litigation back to what our forebears knew it to be: the best show in town.

I wonder when judges, like football referees, will begin to be expected to call time-outs (the courtroom term is "recesses") to let the commercials run.