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Jewish World Review June 10, 2003 / 10 Sivan, 5763

Mort Zuckerman

Mort Zuckerman
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Mort Zuckerman

Consumer Reports

Welcome to Sue City, U.S.A.

http://www.NewsAndOpinion.com | Every day in America, someone pays a price for the enormous inflation of rights over responsibilities. The pregnant woman nearly killed by a stool hurled into the street from a high school's sixth-floor window in New York is not just a case of another unruly school. It is also an example of the consequences of a mass retreat from responsibility--one fomented by the way our legal system has evolved.

Teachers who are firm with badly behaved students know all too well that they run the risk of being sued by parents who smell money more than they seek justice. Nobody can be sure that reason will prevail since juries produce dramatically different conclusions from one case to the next. Doctors are so worried about protecting themselves from potential lawsuits that they prescribe medicines and order unnecessary tests and procedures that amount to an estimated $100 billion a year. Why? So they have a legal defense if they're sued. Some doctors, unwilling to play that game, have abandoned the practice of medicine. This is not the rule of law. It is the fear of law. And it affects our lives in profound ways.

Anyone, it seems, can haul anybody into court for just about anything. Many are tempted to play because the entry stakes are low and the rewards, potentially, are huge. Some examples of the "heads I win, tails I sue" mentality, encouraged by absurd jury awards: A disabled man sues a Florida strip club for not providing equal-access views of the stage; families of illegal immigrants who died trying to cross a desert from Mexico sue the United States for not providing water; a woman throws a soft drink at her boyfriend at a restaurant, then slips on the floor she wet and breaks her tailbone. She sues. Bingo--a jury says the restaurant owes her $100,000! A woman tries to sneak through a restroom window at a nightclub to avoid paying the $3.50 cover charge. She falls, knocks out two front teeth, and sues. A jury awards her $12,000 for dental expenses.

Eager beavers. With such decisions, our society is not merely rewarding cynical opportunists. It is punishing innocent people like the owners of the restaurant and the nightclub. It punishes job seekers when their employers refuse to provide references because the litigious have sued in the past. It punishes troubled marriages when ministers abandon counseling because a lawsuit might ensue if the couple winds up divorcing later.

The right to sue has been exploited by lawyers. They can gamble on taking cases on a contingency basis because they need only 1 win in 10 to score that big judgment that will make up for the other losses. Many plaintiffs are eager to join the gamble because juries are so unpredictable, especially when faced with complex scientific issues. Then, too, there's the fact that many defendants simply refuse to run the risk of trial. There may be no credible evidence that a defendant's product resulted in injury, but a bruising courtroom fight can result in so much reputational and collateral damage that many manufacturers opt to settle instead of fight.

Litigation has become our national pastime. Look at programs like Judge Judy, Court TV, and the People's Court. They capitalize on the public's fury at a legal system apparently run amok--a "system" characterized by frivolous lawsuits, manipulative lawyers, rapacious clients, and outrageous legal fees (prompting one wag to note, "One rarely sees a fat client or a thin lawyer").

The Bush administration is committed to tort reform. It has proposed capping jury "pain and suffering" awards in medical malpractice suits at $250,000, limiting punitive damages and lawyers' contingency fees. Democrats oppose these proposals, on the grounds that no restrictions should be placed on any injured American's right to sue. We can all agree that one injured medical patient is one too many. But one falsely accused doctor is one too many, as well. Somehow, we must restore a sense of responsibility, and of proportion. To do so, we must create a new system of medical justice. Clearly, we want to distinguish between good care and bad care, but juries have limited appreciation of the scientific issues and are not much helped by expert witnesses endlessly contradicting each other. We could, instead, rely on independent panels answerable to the court. We might also penalize those who bring frivolous lawsuits, have damages set by judges rather than by juries, and make the losing party pay the legal expenses of the winner.

Reforms will not come easily, given that trial lawyers have become the most powerful special interest group in American politics, bankrolling politicians, especially Democrats. But tort litigation is costing us all. The current estimate is $200 billion a year, and rising. As author John Naisbitt said in Megatrends, "Lawyers are like beavers. They get in the mainstream and dam it up."

This is one dam we must dynamite--now.

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JWR contributor Mort Zuckerman is editor-in-chief and publisher of U.S. News and World Report. Send your comments to him by clicking here.

Up


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© 2001, Mortimer Zuckerman