Jewish World Review August 23, 2004 / 6 Elul 5764
Don Quixote in town
LITTLE ROCK Philip K. Howard, Esq., brought his one-man show, civic crusade, and genteel manner to Arkansas the other day. Much like Don Quixote exploring an exotic part of La Mancha. All he lacked was a lance and Rosinante; he had all the other accouterments, including this impossible dream:
If he can succeed in slaying enough windmills, common sense will be restored to society; frivolous lawsuits will be thrown out of court; shysters will be disgraced instead of handed awards by their colleagues; and the law itself will be honored instead of being looked on as just a legal form of extortion.
There's more: Doctors won't have to practice defensive medicine - that is, order all kinds of unnecessary procedures for legal rather than medical purposes. (Which means a sizable slice of the national expenditure on health care could actually go to making us healthier!)
Teachers won't have to fear being dragged into court because they dared discipline unruly students.
Class-action suits that net millions for the lawyers and only coupons for the plaintiffs will be a thing of the past.
And so happily on.
Counselor Howard, who looks like the high-tone Eastern lawyer he is, doesn't just barnstorm on behalf of his quixotic dream.
He's also written two books in which he says what everybody else just feels about the sad state of American law these days: "The Death of Common Sense: How Law Is Suffocating America," (Click HERE to purchase. Sales help fund JWR.) and "The Collapse of the Common Good: How America's Lawsuit Culture Undermines Our Freedom." (Click HERE to purchase. Sales help fund JWR.)
Not exactly cheery reading. But on point.
The man has a talent for putting simply what every doctor, teacher, nurse, businessman and anybody else who's ever been threatened with some nuisance lawsuit has come to know all too well. Author Howard has diagnosed a paralyzing social disease. Call it Legalitis.
Like any contemporary crusader, Philip K. Howard has put together his own organization with a bipartisan board of Big Names to back his cause: Griffin Bell, Newt Gingrich, Alan Simpson, George McGovern - all the usual suspects. What, not Lee Hamilton and David Gergen? It's called Common Good, and it can be found at www.cgood.org. (Today's knight-errant never goes anywhere without his Web site.)
But nothing Philip Howard has said or written could better demonstrate what he and the country are up against than the debate he had at the University of Arkansas' law school at Little Rock. The credit for that goes to the trial lawyer and piece of work he was debating-Little Rock's own Chip Welch, who's as good at the game as they come.
By the time he was through, Attorney Welch had run the gamut of his rhetorical techniques-from ridicule to sarcasm. He wheeled out the argumentum ad hominem. (Philip Howard is a Corporate Lawyer boo! hiss! whose firm has branch offices in hoity-toity places like Brussels!) Nor did he neglect the reductio ad absurdum. (If Mr. Howard gets his way, and we have special courts composed of physicians to judge medical claims, the trial lawyer suggested, soon we'll have special panels composed of drunk drivers to judge DUI cases!)
Somewhere along the way, Chip Welch threw in Enron (of course), the bloodsucking insurance companies, and anybody else you might love to hate. His performance was both something to see and deeply dispiriting.
Should he ever decide to give up his day job, Mr. Welch might consider a career in politics. He'd be a natural in a small, basically populist state like Arkansas. Listening to him, you can envision what Huey Long must have been like. Not a low appeal went unmade. Of course the more ravenous types in the law school auditorium ate it up.
Heck, after listening for a while, you could feel yourself starting to look around for somebody you could sue for fun and profit, or at least extract a generous settlement from. And you begin to realize that the enemy 'R' us. And our very human propensity to get whatever we can.
Actually, there are some troubling questions about at least one of the remedies Counselor Howard has suggested for an ailing legal system. He would create separate courts-modeled after Workers' Compensation panels or tax courts-to handle medical lawsuits. But do we really want to risk justice by experts? "Every profession," warned George Bernard Shaw, "is a conspiracy against the laity." After all, we've left law to the lawyers, and you can see where that's got us.
Maybe these specialized panels Mr. Howard proposes could be used as intermediate steps before cases go to trial. That way, their verdicts could be entered into evidence rather than being the last, expert word. That's just one of the possibilities raised by his suggestions.
Philip Howard most of all realizes that his ideas are meant just as springboards for discussion and hearings, not the final word. He's not so much out to change laws or institutions but to change attitudes - that is, our whole litigious culture.
That kind of sea change will not be easy or simple to effect. But at least Philip Howard has got the discussion under way. And, strangely enough, those who dream impossible dreams have a way of exerting more influence in the long run than those who think we already live in the best of all possible worlds.
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