Anger and the American Rule
Most lawyers are not really honest about what they see day by day in their practices. They fear that if they told the truth, they'd have no more work. What most lawyers will acknowledge, privately, when only other fellow lawyers are around, is that there is simply too many of us. The result is that many lawyers are desperate for work.
And what do desperate lawyers do? They sue people. And why not? Access to the courts is inexpensive, and there is no downside. You might always hit a big verdict. And even if you lose, the so-called American Rule shields both lawyer and client from having to cover the costs of the winner. The American Rule has transformed the American civil court system into the equivalent of a roulette wheel. Why not spin the wheel when the costs of doing so are low?
But there is another truth that lawyers are even more reluctant to utter, and that is the world is filled with angry people. Anger drives a good deal of the civil justice system. If you doubt it, ask the next plaintiff's lawyer you know about the concept of client control. It's a notion untaught in law schools, but as as real as the ink on a dollar bill.
Client control means the ability of a lawyer to get his or her client to follow the lawyer's recommendation. A civil dispute works in the following way: A person who thinks they are aggrieved visits a lawyer. The lawyer listens, and, armed with the minimal comprehension of the law acquired to pass the bar exam, the lawyer provides a "diagnoses." In other words, a set of legal doctrines are summoned that define whether the client has a cause of action. The lawyer then engages, or should enage, the client in a discussion about reasonable outcomes.
Consider a client who has been modestly injured in a car accident. The fault of the other driver is clear. So, too, is the fact that harm was caused. The client can obtain some small recovery. Many clients listen to their lawyers at this point. Some do not. Many of those who do not claim the lawyer doesn't understand the magnitude of the harm. They want millions for a hang nail. A lawyer who accepts such a client has no control over the litigation: The client's expectations are so high that the lawyer has no choice but to tilt at justice's windmill. One premier labor and employment firm in Connecticut provides a continuing legal education course to lawyers designed to help them identify just which clients' cases are worth the investment of time and money. Angry clients drive a significant portion of the plaintiff's market for legal services.
As luck would have it, the vagaries of jury system make windmill tilting a sometimes profitable sport. I've from time to time "hit" enormous verdicts that I simply did not see coming. There are lawyers who specialize in angry clients. These folks will pay good money down for a chance at justice's roulette wheel.
I've learned to steer clear of blind anger. Indeed, I've learned to see limitless anger as a sin. As Henry Fairlie once noted in The Seven Deadly Sins Today: "[T]he love of justice is again and again turned into hatred of someone. Whenever love is turned into hatred, we know that sin has entered and wreaked its havoc." This sin may have moral causes, or it may be simple narcissism and no sin at all, but the fact remains that boundlessness, in this case boundless rage, is an emotion at the core of much civil litigation.
I used to think of sin as an antiquated notion, somehow dependent on a set of transcendent rules made obsolete by the virtual absence of God. I now know better. I see sin in myself, and the eternal vigil to keep in balance the raw emotions and desires that are never too far below the surface of things. Anger, it turns out, is an easy sin. I hear it often on the phone: A caller all but shouts into the line that their rights have been violated. Will I take their case? Often, the rights are nothing more than desires unrecognized by law. Fairlie notes: "To present as rights what cannot in the end be secured as rights, as well all too often do today, is as sure a prescription for Wrath as any other that could be proposed."
The civil justice system is overloaded with anger and rage. Mind you, I am not saying that there is no room for the pursuit of justice in the courts. There are cases that should be brought, and relations that can be righted by law. But in too many cases, there is simply the raw hatred of a party seeking some sense of validation the law can never offer. The civil justice system has no mechanism for screening the meritorious from non-meritorious cases. And so long as there is a surfeit of lawyers, there will be an incentive for the legal profession to bring claims lacking in value. The American Rule makes sure this will happen.
But what happens to the party sued in a case driven by sinful anger? This party will win the litigation in the end. Experienced lawyers have a pretty good eye for risk in most cases. There are surprises, but those cases are outliers. Most often, most cases are resolved more or less as expected by those with experience to know what they are seeing.
In cases driven by hatred, seething anger, or a need for validation unrelated to the merits of the actual claim, a defendant pays for his defense. And he pays dearly. And when he wins, the plaintiff and his or her lawyer walk away with impunity. It is simply wrong to permit this, and wasteful.
Defenders of the American Rule say that it provides all Americans with access to the courts, whether they have resources or not. I agree that it does, and I agree that it is a value that should be served. But I see no justice or fairness in requiring defendants, whether they be corporations or individuals, to pay unwarranted legal fees. Why shouldn't a loser be required to recover his costs?
Here's my proposal: Require all plaintiffs' lawyers to post bonds sufficient to cover the eventual winner's reasonable legal fees for all the cases they bring. This would protect the rights of all Americans to get justice in the courts. Plaintiffs would not be barred from bringing any claim they can persuade a lawyer to file. But defendants would also have the protection of recouping their fees when the roulette wheel comes up a loser for the plaintiff.
The proposal is not as far-fetched as it seems. Much like bondsman, who post bonds for released pending trial in a criminal case, a lawyer could be approved to float bonds up to the limit of the insurance policy he purchased to cover the bonds. A lawyer in this case would be free to take any case he wanted, and which his client was willing to pay for. The lawyer would be required, however, to pay the loser's costs from the bond posted.
This new regime could be flexibly applied. Make such a bond a rebuttable presumption in all civil cases. A judge would be free to relax the bond requirement for good cause -- call it a prejudgment remedy for defendants.
Such a rule would have an additional benefit: Once a lawyer was unable to secure insurance for additional bonds, he or she would have to decide whether to post his or her own assets as security. I suspect this rule would force a lot of lawyers to think twice before filing a frivolous writ.
I do not know how much money is spent in defense of civil suits each year. But I'll bet the sum is enormous, and I'lll bet winning defendants often lose big even when they obtain a judgment in their favor. They lose big because the American Rule is, frankly, an invitation to gamble with other people's fortunes. Frankly, that seems downright un-American to me.