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Jewish World Review Dec. 23, 2000/ 25 Kislev, 5761

Marianne M. Jennings

Marianne M. Jennings
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Consumer Reports

Litigation: It's the American way -- SENATOR JOSEPH LIEBERMAN, former partner with Tennessee's least favorite son in election manipulation par excellent, asserted, in his most sincere whine, that litigation is "the American way." The "American way" tag originated with Geoffrey Fieger, the Michigan lawyer who defended Kevorkian and filed the first suit in the Littleton high school slayings. Hubert Humphrey used to quote Plato. Lieberman quotes shysters.

The American way costs a pretty penny. The McDonald's spilled hot coffee case with its excessive verdict was de minimis. The real costs of litigation are the reforms mandated by litigation outliers and geared to society's lowest common denominator. Following the McDonald's case, restaurants put warnings that hot drinks are indeed hot on everything from coffee cups to drive-thru windows, all to protect those who won't be playing bridge at Mensa. The fall-out from the 2000 presidential election lawsuit bonanza will bring idiot-proof voting geared to FloriDUH voters.

Litigation for fool-proofing society has become so pervasive that it runs head-on into itself. Exxon paid billions to settle suits for damage to Alaska's shores caused by a drunken Captain Hazelwood's stint at the helm of its Valdez. Exxon recently re-experienced the American way for banning those with a history of alcoholism from being oil tanker captains, a violation of the Americans with Disabilities Act. When someone falls off the wagon, maneuvering oil tankers around testy coastlines may not be the best line of work. There aren't many inlets large enough for pulling over to sleep it off.

Ours is the most accessible court system in the world. Justice is around the corner for a minimal filing fee. But such easy access demands self-restraint. The American way knows no limits, finding novel damage theories in every accident and unearthing new liability in each twist of fate. We watch Judge Judy daily, dreaming of our day in court and jackpot verdicts. We are scavengers for remedies, foragers for punitive damages.

I served as arbitrator through conscription in a case involving a rear-end bump at 5 mph but damages untold claimed by the plaintiff. Interestingly, the plaintiff had sprung from his car immediately after the collision with visions of contingent fees dancing in his head, sprightly climbed a hill to a Circle K, and energetically called a lawyer who advertises along freeways and during the wee hours of Andy Griffith reruns, all with the other driver chasing him inquiring about injuries.

In another case I arbitrated, a man who claimed permanent injury from a similar accident was photographed snowboarding in Flagstaff just weeks before the hearing.

Because I awarded both plaintiffs nothing, I have been removed by every lawyer in any case assigned to me. I am the antithesis of the American way. There are far greater losses from the American way than silly cases and economic costs. The giving heart withdraws when the American way threatens. Litigation is an antidote to benevolence because we are ever-vigilant of impending summons.

A friend found that one of the mothers in a carpool she asked to join performed a background check on all potential entrants. The background check was a simple litmus test. The mother-turned-private investigator explained unabashedly, "I don't allow children of lawyers in my car." I envision a forthcoming ACLU class action suit for denying the urchins of the bar carpool slots.

When our church provided dinner for the homeless in a transition program, I thought a pan of some of my mighty fine lasagna would be just the ticket Fearful of the transition folks reacting to cheese or being possessed of some allergy someone in Washington is now contemplating regulations for, I instead took a pan of Stouffer's frozen lasagna. Let Stouffer's defend the lawsuits, not I.

A young family member working with troubled youth was reprimanded for hugging her charges. The liability exposure for charges of harassment or sexual abuse, her supervisors warned, was far too great. Hugging is not the American way.

This past summer some friends of our lost their special needs son. His life of 15 years ended as he struggled with immobility, seizures and a body weary of physical imperfection. In their grief, they thought of us and our struggles to lift and care for our teen-age daughter with similar limitations. They offered us their son's lift system, a state-of-the-art means of hoisting and bathing. It was an answer to prayer.

However, our friends explained that because they had been sued previously for something that was not their fault, they wanted a signed waiver upfront. A moment of selfless love and an act of charity were reduced to an exculpatory clause.

Senator Lieberman's American way produces a fear of litigation eats away at our souls. The moments of human frailty and the milk of human kindness are vulnerable for the American way demands too much, forgives too little and forces us unto our islands, free from the summons that flow too often and too easily.

JWR contributor Marianne M. Jennings is a professor of legal and ethical studies at Arizona State University. Send your comments by clicking here.


12/15/00: In defense of rhetoric
12/06/00: The company we keep: Lawyers and elections
12/01/00: Liberals' art of trashing of women
11/20/00: Put me out of my misery
11/17/00: On being a statesman
11/13/00: When it's broke, fixing it wouldn't offend the Framers
11/08/00: ELECTION 2000: I SURRENDER
10/27/00: Al in the package? Memo to women: Choosing presidents and husbands
10/20/00: Ten things the gay community should understand
10/13/00: "You Have a Lump."
10/06/00: The government as the pharmacy: Don't
09/29/00: The capacity for truth
09/22/00: Charity with strings and an agenda
09/15/00: The taming of the shrew: Gloria Steinem takes a husband
09/09/00: Why rich folk don't bother me none
08/28/00: Survival of the not-so-fit but conniving
08/25/00: Conventions: A study in contrasts
08/18/00: Resenting the accusations of racial prejudice
08/04/00: Women: Their own worst enemy
07/21/00: Hillary: Our longshoreman First Lady
07/21/00: SUVs: The root of all evil
07/14/00: The basketball gene and white men not jumping so well
07/07/00: I wanna be around
06/23/00: The liberal conversion
06/14/00: Sex and the City: The shallow but vulgar female
06/08/00: No excuses schools
06/02/00: Oh, Canada: Our Nutty Neighbors to the North
05/23/00: The new mollycoddling coach
05/16/00: On adultery and leadership
05/12/00: Taking your lumps
05/02/00: Elian: There's never a liberal around when you need one
04/25/00: Life's circle and tenderness
04/18/00: Womyn who want it both ways
04/11/00: The monsters we're raising with the ergo proposition
04/05/00: Endowing the Hooters Chair for Literature Appreciation
03/28/00: Dr. Laura: The passive/aggressive kid's mom
03/21/00: Dough and campaigns
03/14/00: The volunteerism of conscription and pomp
03/07/00: Hope and pray that religion remains a force in politics
02/29/00: Ditzes in TV Land
02/22/00: Cranky nitpickers make writing a [sic] experience
02/15/00: Those chameleon 60s activists
02/08/00: McCandidate McCain: Flirting with principles
02/01/00: The demise of marriage
01/25/00: Stroke of the pen, law of the land: Clinton's Camelot
01/18/00: Off the Rocker Rorschach Test
01/11/00: Oprah's lemmings
01/04/00: Struggling mightily amidst the comfort
12/23/99: Confused fathers
12/14/99: Drop-kicking the homeless
12/07/99: Turtles and teamsters, side-by-side in Seattle
11/29/99: When conservatives behave badly
11/22/99: Compassionate conservative: Timing and targets
11/18/99: The elusive human spirit and accountability
11/11/99: Succumbing to the intellectual child within with the help of crackpots and screwballs
10/28/99: Live by litigation, die by litigation
10/22/99: Jesse, Warren, Cybill, Donald and Oprah
10/14/99: Inequality and injustice: It's the big one
10/05/99: Dan Quayle, morals and schoolyard bullies
09/30/99: The monsters of epidermal parenting
09/21/99: The Diversity Hoax
09/15/99: Waco Wackos
09/09/99: Selective censorship
09/01/99: The village, the children, judicial imperialism and abortion
08/24/99: Naughty Newt?
08/17/99: In defense of Boy Scouts and judgment
08/10/99: Ruining the finest health care system in the world
08/03/99: Nihilism and politics: ethics on the lam
07/26/99: Of women, soccer and removed jerseys
07/23/99: Not in despair, a mere mortal doing just fine
07/20/99: "Why me?" How about "Why us?"
07/13/99: Bunk, junk & juries
07/06/99: An Amish woman in a Victoria's Secret store
06/30/99: That intellectually embarrassing Second Amendment
06/24/99: Patricia Ireland eat your heart out --- but check out the recipe in 'women's mags' first
06/22/99: Dems and the Creator coup
06/17/99: True courage is more than just admitting troubles

© 2000, Marianne M. Jennings