'Life Without Lawyers' author says judges need to reclaim authority

By Ann Knef | Feb 12, 2009

Judges have a responsibility to all of society to make sure court claims are valid and reasonable -- that's their job, says author Philip K. Howard in his new book Life Without Lawyers.

Howard says the lack of predictability and legal boundaries in courts has led to distrust of the civil justice system, among other societal ills.

"Americans don't trust American justice anymore," Howard wrote.

He recites some memorable cases to make his point, for instance naming the $54 million lost pants lawsuit against a Washington D.C. dry cleaner as the "anatomy of legal distrust." He also proposes solutions for how judges and legislatures can turn things around and "revolutionize" the courtroom.

Howard, an attorney and founder of Common Good -- a non-profit, non-partisan legal reform coalition dedicated to restoring common sense to America, travels around the country talking about the importance of establishing legal boundaries.

He says that when people are allowed to sue for anything, "it affects everyone's freedom."

"Rights should be put back on the constitutional altar where they came from -– basically, civil liberties such as free speech, property rights, or protection from systemic discrimination," he wrote.

Howard has also authored The Death of Common Sense.

Where juries decide disputed issues of fact, Howard says judges should have the authority to draw boundaries of reasonableness as a matter of law. State legislatures could also help by enacting statutes that allow judges to make rulings of law in consideration of society at large.

Howard asserts that judges must actively manage the conduct of each case.

"Litigants shouldn't have to endure a legal gauntlet for years to see if a claim or defense is valid," Howard wrote. "Judges must constantly draw boundaries-not only on ultimate issues in the case but in getting the case to speedy resolution."

He also says that special courts should be established for areas requiring special expertise, especially for medical malpractice claims.

"It is virtually impossible to make the choices needed to bring order to American health care without a system of justice that can reliably uphold standards of care," he wrote. "Setting standards is not the problem-there are established standard-setting bodies. What's missing is a court that is trusted to uphold those standards."

In a telephone interview, Howard said the system he proposes is "better for the plaintiff with a good claim," he said. "It's better for whoever is right."

He said the rights our founders gave us shielded us from abuses of authority, from government taking our property and protected speech. But, in the last few decades "rights" have mutated into affirmative rights.

When a right is used affirmatively to gain an advantage over others, Howard says that undermines everyone's freedom.

"No where is there a right to sue," he said.

"Letting anyone sue for almost anything does not honor our rights," he wrote. "It turns our rights upside down-law becomes the weapon of state power instead of our protection against state power. Worse, unlike a criminal prosecution, state power is being used for personal gain. People like the lost-pants man get it in their heads that getting rich at the expense of someone else is somehow virtuous.

"Trial lawyers pretend that they're Robin Hood, with the modern twist that they keep much of the money for themselves. This modern approach to lawsuits is not about justice-it's about greed in the clothing of justice."

He also says Americans "hate this overlawyered system" in which law is too involved in our daily choices.

"The main reason it stays in place, in my view, is that we're still reeling from guilt, mainly from racism, and can't bear the thought of another unfair official," he wrote.

With the election of the nation's first African American president, Howard believes President Obama is uniquely qualified to help re-create a "can-do" society, where people are free to find creative solutions to problems.

"You can't do that under the current system," he said. "President Obama can do more to correct the legal system than a Republican president," Howard said. "He's a liberal and African American."

He says that tort reform alone, such as caps on non-economic damages, will not solve all the problems in the legal system.

"Tort reformers have spent years trying to herd lawsuits into corrals that limit crazy verdicts, with success in some states," he wrote. "But tort reformers haven't even attempted to deal with lawsuits as manifestations of public policy, or to question how lawsuits get argued and decided."

"Without a deliberate legal policy of what's a reasonable risk, or what are reasonable damages, lawsuits in America are limited mainly by the imaginations of the lawyers," he wrote.

He says that it's vitally important for judges and legislatures to take different views.

"For many, the hardest part of giving judges boundary-setting responsibility is that we don't trust them. It is inevitable that judges will make a certain number of bad rulings. But at least the rulings will be in writing for all to see and can be appealed to a higher court and, if really stupid, overturned by statuted passed by the legislature. But having no rulings-letting all claims, however unreasonable, go to the jury-is like having a perfect record of bad rulings. In the current system, people see legal danger in the most ordinary encounters and go through the day acting as if they might be liable, thinking: Why take the risk?"

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