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Without a doubt you've heard about at least one of the ridiculous lawsuits floating around America.
Maybe you've laughed about the man who sued a dry cleaning facility for losing his pants.
Or perhaps you've heard about the two teenage girls who sued McDonald's for making them fat. When we hear of these scenarios, it's hard to imagine being personally affected by the lawsuit-culture that has developed in America.
When we see it on television, it's easy to write it off as something that will ultimately serve to keep us safer or more informed. Unfortunately for us, though, people don't stop at trying to ensure safety and knowledge, and there's always a lawyer hovering to take any case presented.
I recently returned from a trip to Santa Barbara, Calif., where I had the opportunity to go horseback riding at a little ranch tucked away in the mountains. In talking to our guide, a man who had spent the last 20 years working at the ranch, he mentioned his biggest fear about the ranch -- that it wouldn't survive another lawsuit. Anyone who gets on a horse, no matter how well trained the horse is, assumes some responsibility for his or her own safety. It is impossible to remove all risks associated with horseback riding -- short of using mechanical horses on a predetermined path.
The idea that this little ranch has to deal with opportunistic guests and lawyers just trying to make a buck is enough to make any small business owner jaded.
The notion of personal responsibility seems to have been lost on many Americans. Sure, there are valid and important reasons to sue another individual or company; sometimes they really do deserve it. But a lawsuit should not be filed every time something goes wrong.
As Bernard Goldberg, a former CBS correspondent puts it, "Somehow we think we're entitled to perfect lives. And if some imperfection intercedes, there will be no shortage of lawyers who will not only take the ridiculous case but also argue passionately that there is absolutely nothing ridiculous about it!"
Some may still defend the lawyers who take these kinds of cases, claiming they do more for the common good than they do harm. Sure, they may just force some businesses to place extra warning labels on products, but what about those groups that can't risk a frivolous lawsuit? The Center for Legal Policy at the Manhattan Institute says that in 2002, "a dozen states experienced medical emergencies because doctors and hospitals could no longer afford malpractice insurance."
With America being overrun with lawsuits from people who want to blame someone every time something goes wrong, we all pay the price. As ABC's John Stossel points out, there are many life-enriching products that aren't being put on the market because of fear over litigation. One company developed a fire-resistant substitute for asbestos but is too afraid to release it to the public.
Vaccine companies are also on the defensive in order to avoid lawsuits. Perhaps you visited Schiffert Health Center this past fall to receive your annual flu shot. We're lucky it's still being offered, because with vaccine makers being sued for millions of dollars each year, there are only a few companies still willing to produce the flu vaccine.
Many companies have developed life-saving vaccines but are afraid to put them on the market for fear of being sued and put out of business.
As Stossel points out, the FDA has approved a vaccine for Lyme disease but no company is willing to take the risk to distribute it. Another company invented a portable kidney dialysis machine. Instead of trekking to the hospital regularly, people with kidney disease could have the procedure done at their convenience.
Shouldn't informed individuals be able to assume the risks of these drugs and products if they so choose? And shouldn't companies be able to provide these life-enhancing products without fear that the few who do not benefit from them might put them out of business?
It is up to our generation to turn the tide back on America's culture of frivolous lawsuits. We need to take responsibility for our actions and carefully weigh the risks without depending on a monetary reward from a lawsuit if something goes wrong.
For those of us who might go on to become lawyers, hopefully we will appreciate the long-term benefits and rewards of choosing cases honestly and judiciously instead of merely seeking the highest financial reward.
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I agree with you 100 percent that frivolous lawsuits may well be our undoing. The problem is there's simply no way to really know whether a lawsuit is frivolous without the discovery that is often found after the suit is filed. For every person who profits from a lack of personal responsibility, there is another case where a company is profiting from misleading or lying to its customers. I believe you when you say that companies are withholding products for fear of being sued, but I imagine that consumers would be hesitant to buy new products without any assurance of relief from outright malice. Great column, though: I hope that those who CAN turn back the tide - lawyers, judges and members of juries - do.
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Yes malpractice insurance continues to rise, but I would like to first say that many stories of frivolous lawsuits are either embellished or wholly fabricated. Before you start complaining about the "opportunistic lawyers" why don't you read the ABA Model rules discussing the fact that an attorney is obligated to represent a client to the best of his/her abilities so long as there is a viable case. I agree that people need to take more personal responsibility, and blaming the attorneys is just another example of how we hold others responsible for our own problems.
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Seriously - we want to consider ourselves 'victims' of the blaming game?! The fact of the matter is that we ARE part of the problem. The ABA rules on apply AFTER the suit is filed; lawyers need to do a better job of screening claims and not bringing suit on every case just on the hopes of making a few bucks to buy a bigger car, bigger house, or more expensive private jet. We are going out of our way to earn the reputation that we seem to think is unjustified - companies print more than a few numbers on a credit card receipt so lets sue for BILLIONS of dollars even though no one's identity was stolen (the whole purpose of the statute). Damages? We don't need no stinking damages - that's what statutory penalties are for. Who cares if my suit causes these companies to increase prices for everyone else - as long as I am getting paid it's OK. We need to start holding one another accountable and stop inviting others to our own pity party.
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The ABA Model rules apply at all times to attorneys not just after the suit is filed. They govern all sorts of conduct, one of which being the obligation to take viable cases.
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Emphasis on the word "viable." There is no obligation to prosecute frivolous claims or non-viable claims that are nevertheless likely to pay nuisance money.
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you're right I was discussing the rule about an attorney's obligation to take a case, Rule 11 is the one that governs frivolous claims and provides for sanctions. Once again, do some research into the rules of ethics for attorneys before you criticize them.
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There is a fundamental ethical difference, though, between a lawyer approached with a case and a lawyer who actively encourages people to prosecute. The lawyer's ethical responsibility is to represent his clients to the best of his abilities - but his ethical responsibility is NOT to create clients when there otherwise would be one. I cringe every time I see an ad on tv for personal injury lawyers trolling for victims of nothing more than unfortunate happenstance - not every tragedy has a price tag attached to it, nor does every tragedy have a culprit behind the act. Personal injury law is important - but lawyers ought to be a little less insistent on creating civil cases when none exist.
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I don't mean to say that all lawyers are virtuous, but rather that there are rules in place to curb the sort of behavior that you are talking about. There are strict rules governing the solicitation of clients. Those ads you see on TV bother me too, but they serve a purpose which is allowing people who have claims to become aware of them before the statute of limitations expires. If you go to law school today you will learn that the professors are already stressing the need for restraint. Is it so wrong to ask that the same sort of temperance from the general public?
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RP, as of right now, yes it is too much to ask. In a world of instant gratification and a "gotta get mine" mentality, we live in the capital. Personally, if for example i fell outside my house and broke my leg on the curb, i would never think of suing the city i live in, even if someone said I "had a case". Also, if i were run over by a vehicle, i would sue for my medical expenses and such, but wouldn't seek excessive damages. If i even sought "damages", they would be consistant with actual disability not "mental anguish". Unfortunately, that thinking is not widespread. I guess my overall point is that the type of temperance we are discussing (and pulling for) is a two way street. The Public and lawyers are making it worse, but i wouldn't hold my breath waiting for either side to stop.
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I think a couple of other factors at play here. As Brian pointed out, there is a “gotta get mine†mentality out there, the something for nothing philosophy and entitlement mentality that pervades our society (see the CT editorial today where they seem to think everyone is entitled to an Ivy League education for free). The second is that far too many people seem to think of “the government†and “big business†as these independent entities from which endless money flows. They don’t understand that the government’s only source of income is, well, your income and that business’ income comes from your patronage. If you sue you may get paid but it comes from the rest of us – and yourself, ultimately. And I couldn’t agree more with the mental anguish thing - life’s tough, get over it. I had a botched surgery and all I wanted them to do was fix it, which they did. I chose to look at it this way – the pharmacist ground hog saw his shadow so I got six more weeks of Percocet.
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You say that lawyers are making it worse, but if a lawyer approached you and said "you have a case" after you fell down he would be guilty of solicitation and subject to discipline. Additionally, rules have been established in most jurisdictions to ensure that you would be unable to pursue a claim of "mental anguish" without actually putting your mental state at issue which means obtaining a report from a doctor or psychologist. Unofficial caps have been already been placed on punitive damages on a relatively recent appeal from an insurance claim. The system is not perfect, but placing the blame on lawyers based upon anecdotal information shows a fundamental lack of understanding of the legal system and the rules followed by attorneys.
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RP, i wasn't trying to say lawyers are the problem anymore then i was saying the public was the problem. what i was saying was that there were offenders on both sides, and that i didn't expect any of them to stop. I realize there have been measures instated to try to stop it, but these measures on their own are like trying to stop a leak in Hoover Dam with a wad of chewing gum.
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Add "pain and suffering" to the things for which you shouldn't be able to sue. Incidentally, RP, I asked an attorney about the obligation to take viable cases, and he said that the ABA does not require any such thing. Attorneys are free to pick and choose whatever cases they do - or do not - take.
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I'm not saying that lawyers are saints, but what I am saying is that if a lawyer brings a frivolous case forward then he will be sanctioned. If you seek more than 5x actual damages in punitive damages you will not get it anymore, and if you go to law school today restraint is taught. However, lawyers are still bound to take viable cases and argue them zealously. This helps people with smaller claims find representation and if lawyers really could just pick and choose which cases to go forward with we would have a much bigger problem. Lawyers make an easy scapegoat, but I'm encouraging you to look beyond them to the other causes. The legal profession is self regulating meaning that the attorneys themselves are the ones who come up with and enforce the codes of ethics. If these money grubbing john grisham stereotypes, as many people see them, can agree to curb litigation then why is it too much to ask the public to be more restrained in bringing a case to the lawyers?
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Chip, an attorney can turn down a case for a number of reasons, such as undue economic hardship, conflict of interest, and even when you do not take a viable case, you may be opening yourself to liability if you do not advise the clients of their rights or refer them to another attorney. I encourage you to look up the cannons of ethics yourself to learn the obligations yourself.
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RP, you are coming from good points, and your syntax is good so i'll listen to and exchange with you comments and ideas, but please read all my posts. They all say that BOTH sides (lawers and the public) need to excercise restraint. Stop reacting like i feel the public is innocent here. i have explicitly said the contrary twice.
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My main point is that an unfair amount of the blame is placed on attorneys based upon a lack of understanding. I know you don't hold the public as innocent, but my comment was more addressed to the point that it is "too much to ask" of the public. If you are willing to abide by principles of restraint, then I do not see why it is too much to ask of the general public. Sorry if I wasn't clear enough in my original post.
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ok...that makes sense. looking back i wasn't clear what i meant by that. it was more of a comment on the nature of thought processes in our society. I think it's too much to ask for a paradigm shift given the state of the "gotta get mine" mentality. by the same token, restrictions won't stop the problem either, so i was saying there is really no solution with our collective mindset being what it is.
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