Philip K. Howard
If the American public doesn't get a better understanding of the corrosive effects of living in a lawsuit culture, the very functioning of society will be at risk.
In his essay, "Making Civil Justice Sane," Philip K. Howard, founder of Common Good, a bipartisan think tank, argues that judges should stop unreasonable civil lawsuits before they start by evenly applying established standards of responsibility.
But since they haven't, America operates under an ad hoc civil justice system "without meaningful guidelines or limits," causing disorder in schools, unaffordable healthcare and a "pall over life's simple pleasures," according to Howard.
"Hardest hit are activities that are optional," he wrote in the spring issue of the City Journal. "Fun, for example, is fraught with fear. Schools ban dodgeball and tag. Jungle gyms, diving boards, and seesaws seem relics of some past civilization. Meanwhile our children, rescued from the risks of roughhousing and accident, suffer from the far greater risk of obesity, now at epidemic proportions."
Common Good is comprised of diverse leaders from across America's political spectrum including George McGovern, Bill Bradley, Howard Baker, Newt Gingrich, Griffin Bell and others.
Howard writes that it is up to judges to be guardians of reasonable choices, "constantly making rulings that draw the boundaries of reasonable dispute," but instead the current judicial orthodoxy has become "Who am I to judge?"
"Judges have forgotten that lawsuits concern not only the parties to the dispute but everyone in society," wrote Howard. "The mere possibility of a lawsuit changes people's behavior. That's why judges must draw boundaries as a matter of law."
Juries are supposed to decide disputed facts, wrote Howard, but instead have assumed the role of limiting risk and deciding what trade-offs are good for Americans, such as safer, but more expensive cars.
Howard states that the direct costs of litigation are significantly greater in America than any other developed nation, and argues that the indirect costs are "debilitating, infecting daily dealings with distrust and defensiveness."
He believes plaintiffs' attorneys have successfully swayed public opinion to believe that "reform" connotes losing the right to sue.
"The phrase 'the right to sue' has magical powers," he wrote. "All the trial lawyers need to do is pound the table – 'they're trying to take away your right to sue' – and instantaneously reformers are on the defensive, muttering about the need to curb frivolous cases."
Howard writes that access to courts is a core American value, but that even so-called frivolous claims require someone with authority to establish that they're frivolous.
"What the public needs to understand is that the right to sue has no substance without the rule of law. Rights without law do not protect freedom but undermine it," he wrote.
"Let the lawyers increasingly isolated by their self-interest, talk about the right to sue. We should talk about the rule of law and how it should support the functioning of a free society."
In some respects Howard believes the tort reform movement has succeeded through measures adopted by state legislatures and congress, as well as through federal and supreme court rulings.
But, he believes society "has a long way to go" toward recognizing that their daily choices are adversely affected when the rule of law does not prevail in America's courts.
He said the Class Action Fairness Act signed into law last year has "hopefully taken the sting out" of the massive filings in Madison County.
"Over half the states have damage limits," he wrote, "kangaroo courts no longer exist in Mississippi and Texas, and, thanks to the class action reform that Congress passed last year, some obscure county court can no longer bankrupt entire industries."
He said his "obscure county court" reference was "absolutely" directed at Madison County.
"Obviously, Madison County has been a magic jurisdiction where judges, stack the deck (for plaintiffs), to show out of state companies a lesson through a combination of evidentiary rulings and encouraging juries to do the work of God," he said.
He said that civil justice reform has so far focused on "crazy verdicts," such as hot coffee personal injury cases and on tort reform, such caps on damages and joint and several liability.
"But it has not by and large focused on the harm done to daily choices of Americans," he said.
"Law has become something people fear, instead of something to trust," he said.
Howard said leadership for change needs to come from several sources, including an informed public, appellate court decisions and legislative action.
"Legislatures need to impose greater obligations on judges to set boundaries on claims," he said. "People should no longer have a free ticket to legalized extortion."
Howard suggested that media step up its coverage of problems in the courts and political leaders should make civil justice reform part of their platforms.
He also said that a broad coalition of diverse interests needs to come together to restore fairness in the nation's courts.