Olson's "The Rule of Lawyers"

Walter Olson is a clear and concise thinker. I've read his blog page, Overlawyered, intermittently over the years and have, frankly, been won over by his common sense. There are too many lawyers. We have too much power to disrupt the lives of strangers with impunity. As a society, I am persuaded, we are overlawyered. A few weeks ago, I thought it time to try one of his books.

The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law (St. Martin;s Griffin, New York, 2003) did not disappoint. But, true to my profession, which is that of a trial lawyer, I read the book with a disconcerting sense of ambivalence.

The Rule of Lawyers is not about the world I inhabit. My firm is devoted to criminal defense and federal civil rights. We work both sides of the Fourth Amendment, using it as a shield for those accused of crimes and as a sword for those abused by police officers. In recent years, however, we have come to file fewer and fewer federal civil rights actions. The reason? Judges have increasingly made the federal courts inhospitable for these claims: Management-happy judges now insist on reports, conferences, special pleading requirements and all manner of digital manipulation of files that contribute little or nothing to the orderly progress of litigation. In Connecticut, for example, a new presiding District Court Judge, Robert Chatigny, ushered in a new plan years ago to have cases move quickly through the system. Cases were to be trial ready in 18 months; to assure that, the judges of the district were encouraged to do a better job monitoring the files. In all but a few cases, the experiement has been a failure. The docket still crawls; all that has changed is the amount defense counsel get to bill for wasting time.

But I disgress. The real culprit in the federal courts has been the expansion of qualified immunity, a judicially created doctrine that makes it very difficult to get a case to the jury. One sign of the change in the law? The two volume edition of the Practicing Law Institute's annual practice manual for civil rights lawyers now consists of an entire volume on qualitifed immunity. It used to be a mere chapter in earlier editions.

Walter Olson would like this development. And perhaps he is right to do so. It is perishingly easy for lawyers to get a case into court. And once there, a defendant pays through the nose for justice. The American Rule prohibits a judge from assessing costs on the loser. Hence, there is little incentive for plaintiff's lawyers to avoid playing spin the bottle with other people's money. Olson proposes elimination of the American Rule. I agree with him, but not entirely: Transferring costs to individual plaintiffs would work a regressive sort of harm on those litigants least likely to afford it. I say require plaintiff's lawyers to post a bond as security for costs. To cover the cost of this bond, lawyers could purchase something like insurance. As with the case of bondsmen, lawyers would be permitted to post only so much insured bond. Defendants could then recoup the costs of litigation without undermining access to the courts by ordinary people. All that would be required would be asking lawyers to make cost-benefit analysis about their own funds.

So what was my ambivalence about the Olson book? I hate to confess this, but here goes: I was envious of the big-time lawyers in the mass tort and products liability business. I've met a few of these folks at one location or another. I recall meeting John Quinn, now deceased, several years ago in Wyoming. He was rumored to have more money than God. I turned my nose up at the time. How could one lawyer have thousands of clients? And what about the ethics of active solicitation of the injured? It seemed, and still seems, sleazy. But it does take my breath away to learn about lawyers with the same J.D. I possess making enough money to cause Croesus to weep.

Envy aside, however, reading Olson made me better understand why lawyers are disdained by many in the business community. I read of one industry after another crippled by litigation and I wondered whether markets really ought to be cleared in such a manner. And if litigation is to decide the life or death of an industry, ought there not be countervailing pressures on lawyers? I end where I started. Lawyers have too much power. We play with the lives of others with impunity. I think Olson's on to something.

I await his next book, and encourage him to take a look at the lives or ordinary lawyers. Not all of us own jets. I'm thrilled with first class on the few times I've tried it. Most often I fly coach.


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