Michael A. Glueck
Warning! There are some new contagious diseases that even the modern miracles of medicine won't ever be able to cure. Spread through close contact with trial lawyers, they include lawsuititis, legal paralysis and class-action insanity.
Californians file one million new lawsuits every year. (Orange County is the second most litigious county in the state.) In the United States it is estimated there are currently 100 million active lawsuits.
In the 1940s lawyers discovered "whiplash." Each and every decade since then they have systematically and in an organized fashion plundered every aspect of your life and lifestyle. We all lose except the lawyers.
A look at a national database of verdicts and settlements reveals that the median jury award for personal injury claims has more than tripled in the past seven years - from about $500,000 to more than $1.8 million, not including punitive damages. Business Week reports that this "assembly line tort litigation" eats up about 2 percent of gross domestic product - about $170 billion. The "lawsuit tax" for every Californian is estimated at $1,800 dollars per year.
But the cost of litigation isn't limited to money. Engineers tell us they turn down work because of the threat of lawsuits, leaving infrastructure construction in this country about 10 years behind and badly in need of repairs.
Many promising medical treatments and drugs are also held back by fear of lawsuits. How can we estimate the value lost in such invisible damage - the medicines, medical treatments, inventions and bridges that never get invented or built? Such losses due to stifled creativity cannot be measured. They are nonetheless very real and a staggering loss to mankind.
For years we have listened in disgust while the trial lawyers rationalized the contingency fee as the poor man's way to the courts. It sounded noble. But one of the most high-profile trial lawyers recently admitted he wouldn't even consider taking on a case worth less than $2 million. He brazenly proclaimed that his clients must be essentially quadriplegic - apparently the loss of two limbs isn't enough.
We admit that there are valid injury cases that should be filed. However, most are worth less than $2 million. So much for that poor guy now getting entrance into the court unless he has a case worth at least a $500,000 fee to his counselor-at-law. Obviously the contingency fee isn't solving the problem.
One solution is arbitration, where both parties agree to a binding decision by a mediator or judge, foregoing the right of appeal. Legal costs are markedly reduced, as arbitration resolves cases in about one-third of the time required for litigation.
Despite the best efforts of judges to head off frivolous lawsuits, too many make their way into the courts. We could have screening committees with representatives from all societal groups - not just lawyers - to act as a "legal gatekeeper" to keep the dogs from getting out and into court.
How about a "loser pays" system? Defending against a frivolous lawsuit is very expensive. Even if the defense is successful, the innocent victim ofthe lawsuit still pays a high price in money, time and damage to reputation. Accused doctors win most medical malpractice cases. But they still have lost days out of their lives that would have been better spent treating patients. In some countries, the loser pays the legal costs of the winning side. If the loser paid the damages, we're sure that many unjustified cases would never be filed.
In his campaign President Bush promised tort reform that would do something to reduce the lawsuits that severely harm and cripple the country and people. We need a cure fast. There are some serious "infectious" diseases even modern medicine can't treat with antibiotics!
Dr. Glueck is a physician in Newport Beach who writes on medical, legal, disability and mental health reform issues. Article reprinted with permission of the author.
