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Jewish World Review
March 29, 2006
/ 29 Adar, 5766
Lincoln and the Compensation Culture
Cherie Booth Blair, wife of Britain's prime minister Tony Blair, has, through hard work and brains, become a highly paid lawyer. However, she's been getting herself and, by association, her husband into trouble. Mrs. Blair has been defending the role of lawyers in an area of litigation dubbed the "compensation culture." This is a form of aggressive litigation for damages that's been imported into Britain from the U.S. Mrs. Blair is currently pushing the case of a Muslim girl who is suing for compensation for lost schooling when she was not permitted to attend classes wearing the head-to-toe jilbab. Critics of this type of lawsuit say the only beneficiaries are a few lucky (and often undeserving) individuals and, of course, the lawyers, of whom Mrs. Blair is one. The losers are the rest of us.
The compensation-culture debate is the latest phase of a longstanding antilawyer bias, evidence of which can be found in Shakespeare's Henry VI, Part Two. A rebel, in outlining his program, says: "The first thing we do let's kill all the lawyers."
The old English legal term for one who goes to the law repeatedly without sufficient cause is "vexatious litigant." In the U.S. compensation claims now form a species of vexatious litigation that is damaging to society. But this is merely part of a wider argument, that the U.S. has too many lawyers and too much law.
TOO MANY LAWYERS?
It is often said rightly or wrongly that the U.S. has more lawyers than the rest of the world put together. And I can recall pundits arguing 30 to 40 years ago that one reason Japan was going to overtake the U.S. was that it had only one-tenth the number of lawyers, per capita, that the U.S. had. One reason America has so many lawyers is that it is, and always has been, easier to become one in the U.S. than anywhere else. This is part of the greater freedom of choice and action that is the source of American dynamism.
There are outstanding cases of Americans who hailed from the hinterlands and had little social standing, such as Abraham Lincoln and Andrew Jackson, who used the law as their first step on the road to the White House. Lincoln's career is especially instructive. Coming from his impoverished background, he could never have become a lawyer in the England, Germany or France of his day. And Lincoln was a good lawyer not only professionally but also morally. If one cites him as evidence that the proliferation of lawyers in America is not necessarily an evil, one must also cite the way in which he chose to practice law. A letter (dated Feb. 21, 1856) that he wrote from his law office in Springfield, Ill. to a George P. Floyd of Quincy, Ill.:
I have just received yours of 16th, with check on Flagg & Savage for twenty-five dollars. You must think I am a high-priced man. You are too liberal with your money.
Fifteen dollars is enough for the job. I send you a receipt for fifteen dollars, and return to you a ten-dollar bill.
This is a beautiful letter brief, simple and practical. Lincoln doesn't argue the point, just returns ten dollars. A copy of this letter ought to hang over the desk of each partner in every law firm in the U.S.
It was not that Lincoln underpriced himself. Quite the reverse. At one point he took on a troublesome and time-consuming case for the Illinois Central Railroad Co. He eventually won the case, saving the railroad (by his calculations) $500,000. Lincoln thought his services worth $5,000, but when the company tried to fob him off with $250, he took them to court and won.
Lincoln's view of the law has direct relevance to today's compensation-culture debate. There survives from the 1850s a paper he wrote to a young man contemplating the law as a profession. The paper is entitled "Notes on the Practice of Law" and ought to be required reading for all law students today. In it Lincoln admonishes: "Never stir up litigation. A worse man can scarcely be found than one who does this." A lawyer, he also says, should always "discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, in expenses and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."
HONEST ABE'S ADVICE
I often wonder what Lincoln would make of the state of the law today. I doubt that he'd approve of Mrs. Blair's representation. Lincoln believed the great virtue of the law was that it provided the best means often the only means of obtaining justice without violence.
I think he'd have felt that compensation-culture cases are too often the pursuit of easy money, not justice. He thought and said in his advice to the young man that accusations against lawyers as being dishonest were exaggerated. He continued: "Resolve to be honest at all events; and if, in your own judgment, you cannot be an honest lawyer, resolve to be honest without being a lawyer."
A good example of Honest Abe's unrivaled ability to speak truth on a complex issue, in the smallest number of words.
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© 2006, Paul Johnson
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