Anderson, South Carolina
The number of lawyers in America is astounding. Recent statistics enumerate 1,143,358 attorneys in the United States or one per 265 citizens. This suggests my small town of 28,000 has more than one hundred alone; as many as 665 in this small mostly rural county. Our small phone book contains twenty-four pages of attorney listings. In France one finds one attorney per 1,403 citizens. As far back as 2006 it’s reported our legal system added $1.6 trillion to domestic gross product, a good part of it as unwilling transfers between defendants and plaintiffs.
Tort law in the United States allows legal counsel to take on clients without any upfront retainer or payment. Arrangements are based on contingency agreements. Clients only ‘pay’ if legal counsel is able to extract an award of ‘damages and compensation’ out of an individual, corporation, insurance company or government entity. Typically in findings against defendants, awards are split 30-70, or thereabouts. To avoid hideous awards by juries, out-of-court settlements are most common. Lawyers and plaintiffs still win - big time. The rest of us generally lose – big time. As Walter Olson succinctly states, “The lawyers' contingency fee -- which, for drummers-up of litigation, is like the battery in the Energizer bunny -- did not become legal everywhere in this country until the 1960s. (It is still flatly prohibited by legal-ethics rules in most countries, as giving lawyers too sharp an incentive to stir up suits and to overplay their clients' hand once in court.)”
Olson cites in one of his acerbic observations, “The direct constant-dollar cost of American tort law, in insurance and related expenses, doubled in the ten years to 1987. Compared with the average advanced democracy with which we compete on world markets, we in America manage to spend from three to five times as much on tort law as a share of our GNP. The gap has been getting wider, too, not narrower.”
My mother often commented on a friend of hers who managed to live life very well by suing for all manner of personal injury. She managed to slip on wet floors in the produce section at the grocery, get nipped by elevator doors in expensive department stores, ad infinitum. My mother did similar things herself. Taking sick with stomach complaints, she came to believe she’d been poisoned by a local restaurant. She eventually received a settlement. Another time she plugged in an extension cord; managing to shock herself and burning her hand. She received a very substantial settlement. She forever gamed health insurance companies; coming out ahead. Those of us paying huge insurance premiums for everything can thank her and her ilk for out-of-control claims experience.
Litigation has become nutzoid. Ben Wattenberg cites celebrated cases. “In 1994, McDonald's was told to pay a woman $2.7 million after she was burned by spilling McDonald's coffee on herself. Her lawyers persuaded the jury that the coffee was too damned hot. The Supreme Court is considering a recent case about BMW of America. A jury decided that the carmakers should pay $4,000 damages to the buyer of a $40,000 car. The charge: BMW did not disclose that they had painted over a $600 blemish before selling it. Fair enough. But the jury also hit BMW with $4 million in punitive damages.” The plaintiff was a highly compensated cardiologist.
A dear friend of mine and her daughter eke out a fragile living running a small mom and pop business, except there is no pop, as he ran off with someone else decades ago. Recently they had the scare of a lifetime. The daughter supplements household income by house sitting and pet minding for friends. Some months ago the daughter and a friend of hers were taking care of animals at two houses. While away from one of these houses, unknown thieves drove a large truck from a nearby barn on the property to the house and loaded up a large heavy safe and disappeared. The truck was later found abandoned. The safe and contents have not been recovered. My friend’s very petite daughter and her friend were named as prime suspects. They were advised by legal counsel to expect to be picked up, jailed, bonded, and subjected to all manner of life stressors only the legal system can mete out. Ten months later they live with uncertainties, not having any closure from this nightmare. What they do know is that half a dozen relationships have been summarily disrupted because someone had an idea something as trivial as money was to be had.
As Olson again cites, “It was only fairly recently, as historical trends go, that the climate in our legal culture changed. Not until roughly the 1960s or 1970s did our law schools really begin to buy into the idea that the way for a country to get more justice (as well as more safety, ethics and so forth) was for more and more people to sue over more and more things. Once that change of ideas had taken place, all the rest was a matter of time. Our legal rules, which for so long had sought to constrain and curb the litigious passion, began enthusiastically stoking it. Reformers vastly liberalized procedure, making it easier for lawyers to shop around for favorable courts in which to file suits, to get the testimony of a dubious hired expert witness admitted to keep a weak case alive, and so forth. Legislators and courts enacted vague laws and standards providing plenty of new grounds to sue, and new chances to collect triple, punitive and intangible damages for such things as emotional distress and humiliation.”
Where have we come in America such that someone who has made poor life choices gets the idea that moneys are to be had from a disabled woman living in a wheelchair? The same place where hot coffee nets $2.7 million?
For seven years I have assisted a disabled friend confined to a motorized wheelchair. Brain tumors, strokes, and other medical misfortunes make her quite dependent on a small disability income while at the same time facing potentially catastrophic medical expenses. She has called me several times recently, highly agitated by fear that a mutual ‘friend’ is about to sue her for personal injury. Another friend called me today expressing the same concern. What was not my business has become my business by virtue of being queried about what to do. All the parties are well known to me and each other.
It seems some weeks ago this friend turned potential plaintiff was assisting my wheelchair-bound friend to get in and out of her lift van. During the course of moving the chair, the potential plaintiff claims to have caught her foot between the wheelchair and the van. I myself have done this a dozen times over the years and never given it a second thought. My feet have been run over by this heavy chair a number of times without consequence, but I wasn’t looking for money.
A spirit of litigation has brought us to believe insurance companies are bottomless pits with printing presses in their cellars, able to make out-of-court settlements against threat of a huge in-court jury award. Expert witnesses can be bought on the internet. We sue every conceivable entity in the land; hoping astute contingency lawyers can win the litigation lottery for us. We may win a big damage and emotional duress award but in the things that matter most, we loss it all. Someone who has suddenly become known for having a litigious spirit has potential defendant/friends now battening down the hatches, heading for the exits. I myself am one of these. I cannot but believe this woman has just cast herself into a form of personal exile in this town. The very people who most actively tried to assimilate this potential litigant into our community are those running the fastest.
Fear of litigation suddenly has become a more powerful driver of behavior than the desire for community. I don’t think I’ve ever seen this immediate of damage control behavior in a group of people who have been violated in the deepest spiritual and emotional ways. Maslow had it right when he said that we must first fulfill our security and survival needs. Only then can we pay attention to fulfilling our higher level needs to interact and belong. Right now we are running.
No servant can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other. Ye cannot serve God and mammon.
I need not wonder why those who serve money would despise us enough to name us as defendants, even hapless little ladies in wheelchairs.
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