Legal Process Reform
Reduce the large number of lawsuits
A large number of lawsuits will be filed this year in state courts throughout the land. Over 15 million. That works out to one new lawsuit every two seconds. Or one lawsuit for every 12 adults in America. Truly a large number of lawsuits.
The threat and reality of being sued by just about anyone for just about anything is altering how Americans go about their business, says author and legal observer Philip K. Howard.
The large number of lawsuits in medicine in the form of malpractice suits as well as the consequently skyrocketing malpractice insurance rates are forcing one in 10 obstetrician/gynecologists to stop delivering babies.
The large number of lawsuits is causing reputable companies to be reluctant to bid on homeland-security contracts, because they don't want to have to face civil liability if a terrorist slips through.
The large number of lawsuits is causing many teachers and principals who are tired of legal threats from zealous parents to now avoid the ordinary disciplinary judgments needed to maintain order in the classroom.
because of the large number of lawsuits playgrounds are now being stripped of time-honored sources of children's exercise and amusement, such as seesaws and swings, because if someone gets hurt, someone else gets hurt by being sued.
Howard challenges the notion that we all have a "right to sue." He argues that limiting lawsuits is a critical tool of social policy. For example, Americans cannot sue utility companies for damage sustained from blackouts, because legislation long ago prohibited such suits in order to keep utility bills from skyrocketing.
Philip K. Howard (Common Good), "There Is No 'Right to Sue,'" Wall Street Journal, July 31, 2002.
For WSJ text
Number of lawsuits in America by state:
The Large Number of Ridiculous lawsuits:
The costs resulting from the large number of lawsuits:
A Few Solutions to reduce the large number of lawsuits. . .
The large number of lawsuits Solution 1: Change the law regarding what is considered a frivolous lawsuit
Anyone can file a frivolous lawsuit and when called on it can simply amend it to involve something less specific that eliminates the frivolous label.
To obtain sanctions for a frivolous lawsuit in Texas, a defendant has to prove, after an evidentiary hearing, that the lawsuit was not only groundless, but was brought in bad faith. To do this, one must overcome the presumption that papers are filed in good faith. Tex. R. Civ. Proc. 13; GTE Comm. Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). "A trial court may not base Rule 13 sanctions on the legal merit of a pleading or motion." Aldine ISD v. Baty, 999 S.W.2d 113, 116-17 (Tex. App. Houston 1999). The lawyer of "empty head and pure heart" avoids sanctionsand the defendant ends up incurring additional fees and costs over the evidentiary hearing, no matter how groundless the initial suit. So when you hear that recovery is possible for frivolous lawsuits, remember that the judicial system has a different definition for "frivolous" than the layperson does.
(Tex. Rules of Civ. Proc. 13).
The Large Number of Lawsuits Solution 2: Have those in leadership positions recognize that there is a problem
. . .when the new president of the American Trial Lawyers Association, Todd Smith, was asked: “Would you acknowledge that frivolous lawsuits exist?” he stated, “I really don’t know what they mean by that. I will acknowledge that on rare occasions there are cases that don’t merit a trial.
But we already have a system in place, of motions to dismiss, that can be utilized very early in the process, and the judiciary in my view has done an excellent job of dismissing those cases.
Take for example the fast-food cases filed in the past year or so. That was dealt with rapidly. So when a case comes up with questionable merit, the court system has regularly dealt with cases like that quickly.
Really the target here doesn’t seem to be frivolous cases. It seems to be protecting the bottom line for companies. It’s terribly unfortunate.”
Well it is good he said it was in his view. Not too many people share it.
The Large Number of Lawsuits Solution 3: Change the law regarding lawyer and judge responsibility in preventing frivolous lawsuits.
Reduce frivolous lawsuits by requiring lawyers as officers of the court to sign each suit they file under penalty of perjury stipulating that the suit has a basis in law and probability of factthe same we all do when we sign our tax returns.
Require judges to make a judgment call on whether or not a case is frivolous or not. Fairly judged many would be eliminated. Common Good’s Phillip K. Howard expands on this:
When Judges Won’t Judge
Phillip K. Howard
The Wall Street Journal
America’s lawsuit culture is transforming our society, but there’s been little focus on why litigation spun out of control over the last 30 years. People never used to sue for hot coffee spills, or for getting fat. There was a time, in the 1970s, when a million-dollar verdict for an accident was headline news. Now people sue for billions. What changed?
Obvious villains are greedy lawyers and a culture that has lost its sense of personal responsibility. But there’s a chicken that laid those eggsthe American judiciary abdicated its role as gatekeeper in the 1960s, and started letting anyone sue for almost anything. Embarrassed by their complacency on racial and gender discrimination, the white males on the bench embraced a new philosophy of judginginstead of a paternalistic model (most famously symbolized by Justice Potter Stewart’s line “I know it when I see it”), judges would be merely referees in a neutral process. Instead of neutrality, however, they left a vacuum. At first gradually, and now at a blinding pace, that vacuum has been filled with new theories and escalating claims by those who see justice as an entrepreneurial activity.
Judges today consider civil justice as a private dispute, rather than a use of state power. They can’t imagine on what basis they should have the authority to limit claims. Just let the two litigants slug it out in front of the jury. As one judge suggested to me, “Who am I to judge?”
But there’s a victim that judges have forgotten. The reason judges must take the responsibility of deciding whether claims are excessive, as a recent decision from the House of Lords in England reminds us, is not because of fairness between the litigants, but because lawsuits affect all of society.
The case before the House of Lords, the equivalent of our Supreme Court, could have been picked from any court in America. On a hot day in the Cheshire region of England, an 18-year-old named John Tomlinson went for a swim in the lake at Brereton Heath Country Park. Racing into the water from the beach, he dived too sharply and broke his neck on the sandy bottom. He was paralyzed for life.
Mr. Tomlinson sued the Cheshire County Council for not doing more to protect against accidents. The Council, he discovered, knew about the risksthere were three or four near-drownings every year. “No Swimming” signs had been posted, and widely ignored, for over a decade. The popularity of the parkmore than 160,000 visitors every yearmade effective policing almost impossible. Fearful of liability, the Cheshire Council had decided to close off the lake by dumping mud on the beaches and planting reeds.
But before the work was done, Mr. Tomlinson had his accident.
The Cheshire Council should have acted sooner, as his lawyer argued, to prevent “luring people into a death trap” and to protect against a “siren song strong enough to turn stout men’s hearts.” The lower courts accepted this argument because the County obviously knew the danger.
The Law Lords took the appeal, and, this past August, ordered the case to be dismissed. Whether a claim should be allowed, they held, hinged not just on whether an accident is foreseeable but “also the social value of the activity which gave rise to the risk.”
Permitting Mr. Tomlinson’s claim, the Lords held, means that hundreds of thousands of people would not be able to enjoy the park: “there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beach should be prohibited in order to comply with what is thought to be a legal duty.“
The County’s ineffective efforts to prevent swimming, instead of establishing negligence, the Lords held, demonstrated how a misguided conception of justice hurts the public. “Does the law require that all trees be cut down,” one Lord asked, “because some youths may climb them and fall?” “Of course there is some risk of accidents . . . but that is no reason for imposing a gray and dull safety regime on everyone.”
This is the missing link in American justice. Judges have lost sight of the idea that lawsuits concern not only the particular parties to the dispute, but everyone in society. The mere possibility of a lawsuit changes people’s behavior. That’s why judges must act as gatekeepers, deciding who can sue for what.
Law is supposed to uphold social norms of right conduct. Oliver Wendell Holmes Jr. said that this was “the first requirement of a sound body of law.” By making people potentially liable for their negligence, law provides incentives for reasonable conduct. But the converse is also true. Allow lawsuits against reasonable behavior, and pretty soon people no longer feel free to act reasonably.
Welcome to America. Mud and reeds have been dumped on natural and necessary human activities throughout American society. Playgrounds have been stripped of all physically active equipment, like monkey bars, with the effect, among others, of contributing to a crisis in childhood obesity. Health-care costs are skyrocketing, in part because paranoid doctors are in the habit of ordering unnecessary tests to provide a possible defense in case there’s a lawsuit. Because of fear of legal claims, teachers can’t put their arm around a crying child.
Lawsuits are easy. Whenever anything goes wrong. It’s easy to come up with a theory of what might have been done differently. There could have been a warning. There could have been more supervision of the playground. The doctor could have ordered an MRI for the headache, just to make sure. Exposing people to liability against the standard of hindsight, however, creates not a safer world but one in which people simply avoid socially useful activities. Obstetricians quit. Seesaws disappear. Businesses stop giving references. The City of New York did, in fact cut the limbs off trees near playgrounds so children would not be tempted to climb them.
All life’s activities involve risk, and therefore the inevitability of accident and disagreement. The role of law is not to provide a consolation forum for those who have felt the misfortune of risk, but to support the freedom of all citizens to make reasonable choices, including taking reasonable risks. That requires judges, wherever someone makes a claim, to balance the seriousness of the risk against the social utility of the claim. Those rulings are the building blocks of our common law system, which, the English Law Lords recently reminded us, “is just the formal statement of the results and conclusions of the common sense of mankind.”
Judicial activism has a bad name. It’s one thing for judges to impose affirmative legislative mandates, like forced busing, but far more disruptive for judges to sit on their hands and let private litigants sue for the moon. Want to fix the legal system? Shine the spotlight on the judges.
The Wall Street Journal, October 22, 2003 p. A20
The Large Number of Lawsuits Solution 4: Eliminate the solicitation of lawsuits
Some Floridians are learning about their impending divorces by opening their mail to find "Dear prospective client" brochures from local divorce lawyers. The phenomenon can arise when attorneys solicit would-be clients before a departing spouse has served them with papers. “These things are hitting the mailboxes of the respondents before they even know their spouse has officially filed," said Warren Wilson, a Clearwater lawyer who's trying to get the state bar's ethical rules changed to curb the practice.
Wilson says one man returned from his mother's funeral in South America to learn from three lawyers' letters in his mailbox that his wife had left him. Aside from inability to reach the other party, service of process can be delayed for various other reasons, including holidays and vacations, tactical or prudential reasons, or perhaps even second thoughts about whether to go through with the action. In a case that happened this summer, Wilson says, a Clearwater woman filed for divorce but did not serve the papers at once, waiting for family members to fly in to protect her. Before that could happen, a lawyer's flyer reached her husband, who came to the woman's house and beat her.
Florida lawyers must observe a 30-day waiting period before soliciting accident victims, but no such rule applies in matrimonial cases, a situation Wilson would like to change
After her son was erroneously arrested, Julie Danielson checked her mail and was "shocked to see at least 12 envelopes -- postmarked only hours after her son's arrest -- from defense attorneys offering their services. The lawyers had been eager recipients of a jailhouse e-mail list supplied daily by the county sheriff. ... The couple was astonished that Riverside County [California] deputies failed to call them when their son was arrestedthough contact and medical information was in the young man's walletyet managed to inform people who wanted his business. One envelope was emblazoned "Experts in Drug Charges". "In New Jersey, which sends information companies who have registered with the state daily updates of who's been arrested, a Supreme Court committee recently tightened its rules on the content of direct-mail solicitations after hearing complaints 'in a volume too great to ignore.' One man had received 22 letters from lawyers."
The Large Number of Lawsuits Solution 5: Make laws defining a wide variety of behavior on which suits can and cannot be filed on.
Utilities cannot be sued when power goes out in an entire city because it is not deemed in the public interest to allow the volume of suits which would hurt everyone.
Deed restrictions limit what you can do with your own property
that is your home when it might go against the public interest. Why not restrictions on what others can do with your property whether a home or other assets when that might go against the public interest?
The Large Number of Lawsuits Solution 6: Make laws preventing some individuals from filing lawsuits.
Our constitution allows each of us equal rights under the law. But would it not seem logical that those who are convicted of a felony because of their successful or unsuccessful attempt to deprive others of their rightssuch as the right to not be harmed physically or the right to not be deprived of propertyshould not have the right to sue. Or how about child molesters? Should they have the right to sue? Others of the same ilk could of course be identified. We might improve our culture. And the large number of lawsuits filed would be reduced.