The United States has a reputation as the most litigious society in the world, a place filled with lawyers and citizens eager to sue over just about anything. This, say critics, is a measure of the country`s growing legal dementia. That thesis could be true except it overlooks one salient point: It used to be worse.
In 1639, the litigation rate in Accomack County, Virginia, was 240 per 1,000-more than four times the highest rate of any county in the United States today. Twenty percent of the adult population had appeared in court five or more times over a seven-year period, records show, either as a participant or a witness in lawsuits that often were over breach of contract, slander, property ownership or damage.
In 1683, one in 10 adult male citizens of Salem County, Massachusetts, was embroiled in a lawsuit.
”Most men living there,” says one historical account, ”had some involvement with the court system, and many of them appeared repeatedly.”
In no other country in the world is the right to file a lawsuit so cherished. It is a right rooted in ancient English common law, a model for the U.S. Constitution. One of the earliest U.S. Supreme Court decisions upheld the right of citizens to file suit. Proclaimed Chief Justice John Marshall in the 1803 case Marbury vs. Madison:
”The very essence of civil liberty certainly consists in the right of every individual to claim protection of the laws, whenever he receives an injury.”
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When Congress and state legislatures liberalized liability laws in the 1960s, they opened the floodgates for civil lawsuits. As the court system has staggered in recent years under ever-rising numbers of complex, multimillion dollar lawsuits, a sharp debate has taken shape.
One side contends the rising rate of high-stakes lawsuits is extinguishing American ingenuity and the nation`s ability to compete and prosper as a colossus of international trade.
The other counters that the recent increase in high-stakes litigation more accurately reflects fundamental changes in society caused by technology and the growth of corporate power.
The argument cuts to the most basic rights of citizens. How else can an average person who is injured by a corporate leviathan seek accountability or vindication, except through a lawsuit? supporters of the system ask.
Beyond that is a chorus of experts and advocates who wonder if it`s time to scrap the system and try something different.
Much of this is a public relations struggle, fought with millions of dollars from various political action committees, all of whom have a huge stake in the outcome. On one side, manufacturing, trade and insurance industry associations and the medical community favor reining in the law. On the other, personal injury and defense lawyers bankroll those who want to leave the current system alone, aligning themselves with consumer and labor
organizations.
All the varied interests vie to influence Congress and the 50 state legislatures who control federal and state liability law.
State legislatures for the last 10 years have been experimenting with a variety of refinements to existing tort laws. Most of them try to set limitations on juries by imposing ceilings on damage awards, or try to cool the ardor to sue by limiting the percentage of an award that contingency fee lawyers can claim.
A national liability law reform bill is introduced-and deferred-every year in the United States Senate. The bill proposes to create a series of federal rules that would standardize liability law nationally and clamp monetary limits on the size of liability awards and contingency fees. They also would encourage states to establish ”no-fault” funds for certain types of catastrophic injuries and mandatory arbitration panels that would offer people an alternative to the court system.
Judges, too, are streamlining the system to speed it up and make it more efficient and less costly for plaintiffs, defendants and taxpayers.
Meanwhile, some advocates have examined other systems or methods in search of a better way.
One suggestion is a variation of the ”English Rule” in liability law, which requires the loser of a lawsuit to pay the legal expenses of the winner. What could be more unfair, the critics say, than the current system in which an individual or a corporation is forced to continually bear the legal expenses of defending themselves against lawsuits, many of them frivolous?
Even if they win, they still must spend hundreds of thousands of dollars, even millions, for defense lawyers.
If the losers were forced to pay, the critics say, fewer lawsuits would be filed.
Logical as the English Rule sounds, it sidesteps the question of how an ordinary person could hope to seek justice if he is injured by a person or entity of great wealth, which could spend vast sums in its defense.
Because money often means the ability to prolong and run up the costs of litigation, the English Rule would unfairly tilt the balance in favor of money and influence.
And though English courts are notoriously stingy with liability awards by American standards, English citizens enjoy a comprehensive national health and welfare system. A catastrophic injury in England does not bankrupt its victim as it can in America.
Others propose that the jury system in liability trials should be eradicated, replaced with panels of experts, specially appointed to decide liability matters in their own fields of expertise.
That hardly seems likely, because Americans distrust the cozy relationships that can develop in institutionalized governmental bodies that deal with public policy.
The jury, Thomas Jefferson said, is the ”only anchor ever yet imagined by man by which a government can be held to the principles of its
constitution.”
The idea of using independent panels of experts has been explored particularly in medical malpractice cases, where some experts propose the liability system be removed from the realm of courtrooms and lawyers` control. They suggest the ”no-fault” plan of resolving medical malpractice claims, because new studies show that people who are injured by medical malpractice rarely receive compensation.
The Harvard University Medical Practice Study published an exhaustive investigation last year based on the admissions to 51 hospitals in New York state in 1984. The study showed that 1 percent of patients admitted to the hospitals were injured due to medical malpractice. Of those, however, only one of eight filed lawsuits. And only one in 16 received compensation.
The study found that 60 percent of the money spent on malpractice went to lawyers and court administration, and only 40 percent went to injured patients.
Medical malpractice laws, the study concluded, are extremely inefficient as a method of fairly compensating victims and monitoring doctors`
professional performance.
A form of no-fault compensation suggested by the study as an alternative would compensate all patients injured as a result of medical care, whether it was due to negligence or not.
The merits of a claim would be weighed by medical boards of inquiry that would decide on the cause and seriousness of injuries. That would eliminate the courtroom contests, including the money spent on lawyers` fees.
Under such a plan, far more people would be compensated for medical injuries and doctors would be held to high standards, supporters say.
The drawback of a no-fault system, according to the Harvard study, is that it might be no cheaper than the present liability system. And injured patients with successful claims probably would not get such generous awards as they often do now from juries who consider such things as pain and suffering. However cumbersome the American liability system, its supporters contend it is this country`s most effective tool to monitor the safety of goods and services. The looser guidelines have enhanced that effectiveness by forcing businesses to pay more attention not only to the safety of their products, but also to their workplaces, some experts say.
”In recent years,” said Marc Gallanter, law professor and tort specialist at the University of Wisconsin in Madison, ”there has been more and more litigation with individuals fighting institutions.
”For the first time, managers of institutions have had to face this. They feel offended because they are being held accountable by the general public, and they have to prove themselves. So they fight back by calling this a litigation explosion of frivolous claims.”
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Each year a huge amount of new technology is launched into the American mainstream so quickly that no one and no government agency can possibly assess its performance and impact. Our present liability laws, supporters say, perform a valuable, early-warning public watchdog function.
But critics contend that the laws have become too liberalized, crippling industries and professions when they were designed only to hold them accountable for mistakes.
”I thought the law went so far the other way; we had to bring it back to the center,” said Victor Schwartz, former University of Cincinnati Law School dean.
Schwartz is the author of the standard tort law casebook used in most law schools. Now a Washington, D.C., defense law consultant, both he and the book are known as ”Schwartz on torts.”
”There has to be a fair middle ground,” said Schwartz.
Schwartz, like most defense lawyers, defends personal injury lawyers who work on contingency fees because they allow ordinary people access to the courthouse. And, of course, contingency fee lawyers generate business for defense lawyers.
When Schwartz lectures on the liability business, he uses a fictitious contingency fee firm to make his point.
”Ketchum Cheatham & Howe file a claim that has absolutely no basis to it in fact against one of my clients,” Schwartz said. ”My client calls to tell me, and my clock starts running. My fee is $325 an hour. If we fight this thing to a trial verdict, it is going to cost my client $250,000. Instead, we`ll settle this for $5,000 and avoid the big expense.”
Though Schwartz doesn`t want to see contingency fee lawyering banned or tort laws abandoned, he said sanctions should be imposed on lawyers filing such spurious claims. Such a concept, called Rule 11, is gaining favor in legislatures. That rule would require lawyers filing suits to first demonstrate the suit is grounded in fact and law.
In Cook County, judges are taking innovative measures to pare a choking backlog of pending lawsuits. Since December, Judge Donald P. O`Connell, presiding judge of Cook County Circuit Court`s Law Division, accelerated steps already under way to shorten the waiting time between filing a lawsuit and going to trial.
Since April, 1990, his division has assigned cases of $15,000 or less in damage claims to mandatory arbitration, where they are resolved by panels of three lawyer-arbitrators. That limit may be raised to $50,000, a figure that attracts few contingency-fee lawyers.
Thus far, O`Connell said, arbitration has worked well, reducing a backlog of 57,000 pending lawsuits by more than 10,000.
In addition, O`Connell is supervising several administrative changes designed to cut in half the average six-year period it takes for a lawsuit to reach trial. These involve a computer-based system of assigning judges to cases and courtrooms, severe restrictions on granting lawyers continuances and holding fast to assigned trial dates.
”The first goal,” O`Connell said, ”is to clearly establish for attorneys and litigants that trial dates are not continuance dates. You can`t wait for a trial date to come up and then come in and announce you are having scheduling problems. You have a date, you go to trial.”
The importance of holding to assigned trial dates, he said, is primarily psychological. He said 97 percent of all lawsuits in his courts are settled out-of-court, most of them within weeks or days of a scheduled trial date. Plaintiffs and defendants fear juries, so they become more amenable to an out- of-court settlement as the trial date draws closer.
”I hope to have all these changes in place by September,” said O`Connell, whose division is now trying lawsuits filed in 1985. ”We think we`ll dispose of less complex trials within two years once our changes are in place, and more complex cases should be resolved within three years.”
Even if the Cook County court system is speeded up, the more basic questions remain. Are too many lawsuits filed? Do the current laws stack the odds too heavily in favor of lawsuit plaintiffs? If we tip the balance again, making it harder for individuals to sue and recover damages, what will society gain and what will it lose?
That debate continues to be shaped by wealthy, self-interested commercial and professional groups seeking either to change the law or to protect the status quo, depending on how they profit in the system.
They or their political action committees argue that they represent the best interests of society. But at the core of the argument is the right to sue, one of the fundamental principles upon which American democracy was formed.
Some of the reforms suggested would effectively bar many Americans from the courtroom. The question now is whether there would be an overriding danger in that or whether the system has been so abused that the right to sue should no longer be an American birthright.