Three new books highly critical of the American legal system have been recently published.
Walter Olson, author, critic, and senior fellow at the Cato Institute, has written Schools for Misrule: Legal Academia and an Overlawyered America, which describes the major role played by law schools in fostering our lawsuit-happy society.
Benjamin Barton, Professor of Law at the University of Tennessee School of Law, has written The Lawyer-Judge Bias in the American Legal System.
Lester Brickman, Professor of Law at the Cordozo School of Law at Yeshiva University in New York, highlights the fundamental role of the contingency fee in causing the liability crisis in his book Lawyer Barons-What Their Contingency Fees Really Cost America.
Each of the authors presents a different perspective on the problems of our legal system and each proposes a different solution. Although none of the authors devotes much discussion specifically to medical liability, each analysis has direct implications for solving the medical liability crisis.
The liability crisis in medicine is just part of a larger liability problem that affects all Americans. A brief synopsis of each book follows.
Schools for Misrule, Legal Academia and an Overlawyered America by Walter Olson
Olson makes the case that a major overlooked cause of the litigation explosions is legal academia. As in his previous three books, Walter Olson describes our litigious society as the “American disease.” Americans resort to the courts with dubious claims of injury far more often than other Western industrialized democracies. Olson asks: “What accounts for this great national difference?” He cites the usual reasons given by experts: a national tradition of litigiousness, an abundance of hungry lawyers, and a lack of a loser pays principle in allocating the costs of litigation.
Olson shows how influential legal academicians have propounded theories that lawsuits can solve many if not most societal problems. They also have been strong proponents of rules that make proving liability much easier. They have influenced their law students who then become lawyers and judges. The result predictably has been an explosion of lawsuits. This movement started in the 1960s and continues unabated to this very day. Olson does not hesitate to name the academicians responsible for this change and documents in detail the court cases that their theories have spawned.
Olson asks the question: “Are law professors and legal intellectuals the rightful arbiters of what law should be?” He answers his own question in the negative. Legal academicians have no more “moral purity” or “consciences more finely honed than the rest of us.” They have no business espousing theories that expand liability for American citizens and businesses.
Olson believes that law schools should be set up to train competent lawyers—period. They should not be developing philosophies on how we should be governed. In a democracy that role is reserved for the people through their duly elected legislators. Olson ends the book with the statement that “We neither need nor want more philosopher-monarchs.”
The Lawyer-Judge Bias in the American Legal System by Benjamin Bartin
Benjamin Bartin extends Olson’s criticism of legal academia a step further by adding lawyers and judges to the list of guilty parties. He states unequivocally that judges, all of whom are former lawyers, are biased. This is a surprising statement coming from a law professor. Bartin proclaims “The lawyer-judge bias favors the legal profession over the public.” It is responsible for the special privileges and a lack of accountability that are granted to lawyers but not to other professionals.
Bartin explains in detail how law is the only profession in America that is self-regulated. State supreme courts regulate lawyers. In contrast, state legislatures control the regulation of every other profession including Medicine. Law has no equivalent to the Board of Healing Arts that regulates health professionals. Sometime state supreme courts delegate regulatory authority back to state bar associations. Either way the end result is the same-”regulation by lawyers for lawyers.”
The author’s best real world example of lawyer-judge bias comes from the meltdown of Enron. Lawyers were intimately involved in approving the accounting fraud of using “off the books special purpose entities” that were responsible for Enron’s collapse. This cooking of the books was responsible for the destruction of $68 billion in wealth and cost 5,600 Enron employees their jobs and retirement funds. Arthur Anderson, the accounting firm for Enron, was destroyed. Its tens of thousands of employees, almost all of whom had nothing to do with Enron’s collapse, had to find new jobs or retire. Enron executives were prosecuted and some went to jail where they remain to this day.
Their lawyers basically got off scott-free. Nancy Temple was Enron’s general counsel. The record shows that she instigated illegal document shredding. Yet she never faced criminal charges, nor did she face punishment from any disciplinary authority. She is now practicing law in Chicago.
Enron paid Vincent and Elkins (V&E), its outside law firm, from $18.6 million to $42.8 million annually for legal services. After Enron’s collapse V&E paid a fine but not one lawyer was disbarred or even faced a public sanction from a licensing body for thei role in the collapse. V&E, unlike Arthur Anderson, continues to thrive. It now has 700 lawyers in offices across the globe. Barton adds “Although lawyers have been intimately involved in all the most famous accounting fraud cases in the past ten years, they have faced almost no consequences for their actions.”
To eliminate lawyer-judge bias Barton proposes lay judges, which are used in other countries. Or as an alternative, he proposes hybrid models of judicial panels composed of both lawyers and lay judges. Currently he notes lawyers and judges operate in a highly rarefied atmosphere apart from the real world upon whose citizens they render judgments.
Bartin’s solutions may sound impractical, but they have major implications for Medicine. Individuals who have experience and training in fields other than law make ideal judges. An outstanding example is Judge Janis Jack, who exposed the silicosis mass tort suit as a complete fraud, i.e. “manufactured for money.” She denounced, or more accurately “skewered”, the expert witness physicians who testified falsely for the plaintiffs. Jack is a former nurse. One can only wonder whether a judge without her medical background would have been able to expose this landmark mass tort fraud.
Health courts, where judges are required to have background and training in science and medicine would also provide an excellent opportunity to correct the lawyer-judge bias. Bartin does not mention them in his book.
Lawyer Barons What Their Contingency Fees Really Cost America by Lester Brickman
Lester Brickman has been a leading critic of mass tort litigation, especially asbestosis and silicosis. He has also written extensively on legal ethics especially regarding lawyer fees. Brickman believes that the major cause of the litigation explosion is the contingency fee. He discusses in depth the history of the contingency fee and notes that it is outlawed in most Western industrialized countries including Great Britain where most of our common law originated.
Brickman makes clear that his book is not just another attack on “greedy” trial lawyers. He states: “Trial lawyers are greedy but so too are CEOs, hedge fund managers, bankers, actors, doctors, teachers, airline mechanics, oil and drug companies, to name but a few, and you and I.” In Brickman’s view, what distinguishes lawyers from the rest of us is “the positional advantage” that contingency fees and judicial control over the practice of law gives them.
Brickman is in complete accord with Bartin that lawyers have collaborated with judges to bypass legislative bodies and use the courts to make new law. Both concur that lawyers have enriched themselves at the expense of the public. They both note that very little can be done about it because lawyers alone among all professionals are not held accountable for their actions by independent regulatory bodies created by state legislatures.
The author then makes the following points:
Over the past 45 years tort lawyers, due largely to contingency fees, have increased their incomes by 1,000%. In some specialty mass tort suits fees have risen as high as $30,000 per hour or more.
During the same period trial lawyers have collaborated with judges to increase the scope of liability.
Contingency fees provide financial incentives to drive up pain and suffering damages. These incentives have caused some lawyers to screen hundreds of thousands of persons and to hire doctors and technicians to generate largely phony medical reports to support claims.
While some class actions suits seek to redress true injuries, many more serve as ATM machines for lawyers.
The enormous profits generated by contingency fees are used politically to affect legislation, which further expands liability and drives up the cost of goods and services for average citizens. These profits can sway elections and undermine our democracy.
Brickman’s answer to the liability crisis is not loser pays, expert witness reform, and caps on pain and suffering, although he would not oppose any of these reforms. Nor would he eliminate contingency fees. Instead he proposes a solution called “early offer.”
Early offer can be best explained by an example. If a defendant offers to settle a case for one million dollars, and the plaintiff accepts the offer, the plaintiff’s lawyer could charge only hourly rates for his work. If the plaintiff’s lawyer can obtain more than one million dollars through negotiation or trial he could charge a contingency fee only for the amount of money that exceeded the early offer. Under the current system the plaintiff’s lawyer’s charges would be about one third of the entire settlement, or approximately $300,000 regardless of the amount of time he put into the case. By limiting potential windfall profits from contingency fees, Brickman believes early offer would markedly reduce the incentives for filing lawsuits.
Early offer was actually placed on the ballot in a 1996 initiative in California. Not only tort lawyers, but the New York Times, consumer-advocate Ralph Nader, defense lawyers, process servers, expert witnesses, court reporters-essentially the entire legal industry opposed it with all available resources. It lost by a small margin. Early offer would probably be more successful in reducing non-meritorious lawsuits in product liability than in medical liability.
Conclusion
These three books were written by mavericks who had the courage to challenge the status quo in our dysfunctional legal system. The authors are outraged at the liability explosion. They are outraged at the power of judges, lawyers, and legal academicians who together have fostered this litigation explosion. The mavericks of today are often the heroes of tomorrow.
Biography
Art Gale, MD, St. Louis, MSMA member since 1976, is a member of the Missouri Medicine Editorial Board.
Contact: agalemd@aol.com