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.

Comments: (3)

  • Too many lawyers, not enough honest ones. Too many...
    Too many lawyers, not enough honest ones. Too many judges, not enough competent or courageous ones. See essay on Judge DumKopf below.
    The legal profession, as I see it, is all about dividing-up the pie, while reserving the largest share for itself and members of the 'bar'. It is a totally nonproductive enterprise. In what other profession can you get paid for making mistakes, not doing your job and/or performing badly?
    If I am an average trades-person--pick any other occupation--say, and I perform badly, I get fired or laid-off. If I am a private contractor or merchant, I may not get paid for my labor or paid for my merchandise. That is the real reason why all attorneys want to get paid upfront. That is the first thing they teach you in 'law' school. Because, I know full-well that if I lose or fail somehow to satisfy my client, I may not get paid. It is a totally dishonest profession from the getgo, a profession full of sound and fury but often signifying nothing.
    Think Justice Antonin Scalia, who this week is being featured on PBS along with the other S.C. justices. Just as war is too important to be left to the generals, so too is the 'law' too important to be left to the attorneys and judges who torture and distort the English language to suit their private inclinations and achieve predetermined results.
    This is easily demonstrated. And if you do not believe me, read some appellate and supreme court opinions, both state and federal. Some are brilliant, and many are little more than gibberish, gobbledygook and codswaddle. The legal profession encompasses both the brilliant and the deficient under the same tent. The declining career of the dottering Justice William O. Douglas comes to mind as an example of the latter. (I certainly would not want him flying my airplane or building my house.)
    I have personally heard Mr. Pattis say, at a public forum, "We attorneys work hard! We have to get paid!" Yes, Mr. Pattis, we hear you. But how much? And when is too much not enough? Or, did I get it backwards?
    Is it any wonder that the legal profession consistently ranks at the bottom of opinion polls? Having said all of that, I'm thinking about taking up the profession myself--in retirement--so that I can re-open my own grotesque CT cases as a 'member' of the bar, where no attorney will come to my aid for anything near a reasonable fee. Attorneys engage in the obfuscatory arts for a reason. The reason is, more often than not, treason.
    Posted on January 3, 2010 at 4:22 am by William Doriss
  • This just in from Chicago:
    Norm, I tried to post ...
    This just in from Chicago:
    Norm, I tried to post a response on your blog today (with my name attached) but had difficulty. I guess my computer IQ is too low. I wanted to respond to your post about the "American Rule" and your suggestion that plaintiff's attorney's post bonds.

    In any event, this is what i wanted to say:

    Norm, I always value your opinions and comments but I hope that you will reconsider your position on this issue. Civil litigation is not a roulette wheel. And the cost of pursuing civil litigation is hardly minimal. To the contrary, it probably costs at least $10,000.00 in litigation expenses to try the SMALLEST personal injury case in the Chicago area, which is where I practice. In major cases the litigation expenses can reach the six-figure range. Indeed, the significant cost of litigation is the greatest deterrent to the filing of so-called frivolous lawsuits. No lawyer wants to throw his or her money away. So your premise is wrong from the onset. And in any event, there are rules in place to impose sanctions should an attorney indeed file a frivolous lawsuit: Federal Rule 11 and its state equivalents. If the truth be told, the deck is already stacked in favor of the insurance companies. By requiring a plaintiff's attorney to purchase a bond as a condition precedent to the filing of the lawsuit, you are putting up another hurdle that must be jumped, if it can be jumped, before justice is achieved. And who is going to finance these bonds? The insurance companies that we are indirectly suing? Seems to me that they wouldn't want to do it. As you have no doubt observed in your own practice, even the most meritorious cases with catastrophic injuries are aggressively defended by corporate America. How often does an insurance company come forward and say, "We owe on this one. Let's settle it without litigating." You'll find more snowy days in Hawaii.
    Posted on January 3, 2010 at 8:04 am by Norm Pattis
  • Norm
    Bonds for attorneys fees and costs, caused b...
    Bonds for attorneys fees and costs, caused by unsuccessful lawyers. Sounds like a great idea to me, but why limit such to civil plaintiffs.
    The real problem with our Courts are the criminal defendants who are more evil, etc., than civil plaintiffs.

    Why not apply the same rule to criminal defense lawyers. They, too, should post a bond against costs of prosecution, such being forfeited to the state on conviction.
    A few losses and you might be soon doing socially useful work.
    At the same time, let's amended the constituion and take away right to appointed counsel.
    Under such a system, only the guilty will be convicted.
    The rich, with funds to post bonds for good lawyering, will be acquitted.
    Posted on January 12, 2010 at 8:54 am by John D.

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