Friday, March 12, 2004
Nine out of ten doctors would agree that our legal system is ailing. But what exactly is the illness? And, more importantly, how can it be cured?
On Thursday morning, AAOS Keynote Speaker Catherine Crier diagnosed the problem before a standing-room-only crowd, offering her own prescription for reform.
Combining her own experience with the insights of both historic and contemporary social critics, the lawyer/investigative journalist identified six areas in which the current legal system is failing: fairness, transparency, reasonableness, pragmatism and compensation only for legitimate injury, and just compensation. Judicial advocacy and the creation of laws that do not address the concerns of the citizenry were also cited as contributory factors.
Lack of fairness
"The law must be fair," Crier said, "but it is not."
She cited the example of a cigarette smoker who gets cancer "then collects millions of dollars because she can't quit the habit while some pathetic drug addict goes to prison."
White collar criminals scam millions of dollars only to receive probation or a stint in "Club Fed" while a petty thief does serious time, she added. "And the death penalty is administered to poor and often minority defendants while celebrity murderers go free."
Most obviously, the law must be transparent, Crier said. "It must be known."
She decried a system of laws so complex that even their enforcers-such as the Internal Revenue Service-cannot understand them.
"Hospitals, contractors and manufacturers have thousands of rules to follow governing the smallest activity under OSHA regulations. No one can possible know them all. And police officers can't even rely on a rule book-they don't know whether their judgment is good or bad until some court reviews their conduct."
The law should compensate only for legitimate injury caused by another, but Crier said, "I suggest that is does not."
Punitive damages have skyrocketed into the stratosphere for the lucky plaintiff with the right jury.
"If you were exposed to asbestos as some point but have never taken ill, that doesn't stop you from collecting. If some hacker 'identifies' a flaw in computer software-although no one has experienced any problems, and no one can re-create the problem-the hacker can still collect."
"Even the fear is of getting cancer is now compensable," she added. As many doctors and hospitals know, out-of-court settlements are often accepted rather than leaving the case to an unpredictable jury trial.
It's not only legitimate injury that we've lost sight of, but just compensation for injury, she said.
"The law should provide for just compensation-it should not unfairly enrich the players," she said. "Virtually every lawsuit can be handled on a contingency fee, making the attorney a financial partner in the outcome."
Class-action suits are accepted under the flimsiest of filings, and the lawyers pocket millions of dollars while winning discount coupons for their clients. "These days, your 'rights' are being litigated whether you want them pursued or not," she said. "If you don't specifically opt out of a class-action suit-you're in."
Crier told the story of a recent airlines price-fixing suit, in which the plaintiffs received a discount coupon for a future flight, which included a number of restrictions. As the airlines expected, few coupons were redeemed. The plaintiff's attorneys, however, pocketed $14 million for their efforts.
Criers' home state of Texas earned a hearty round of applause from the crowd when she cited a new state law that requires like payments to plaintiffs and attorneys. "If the plaintiffs are paid in coupons, then the lawyers should be paid in coupons," she said.
Due to fear of litigation, labels now warn us against the most absurd events, Crier said. "One of my favorite webs sites, Michigan Lawsuit Abuse Watch, sponsors an annual Wacky Warning Label contest."
As examples, she cited a 13-inch wheelbarrow wheel with the warning, "Not intended for highway use;" a household iron that warns "Never iron clothes while they are being worn;" and the baby stroller label that reads, "Remove child before folding."
Other infractions of the "reasonableness" standard include rules of due process that can keep a bad teacher in the classroom for years, or forestall a federal mandate, like seat belts, for decades.
"Despite 40 years and billions of dollars, the war against drugs goes on," Crier said. "Statistics show that neither supply nor demand has changed a whit during this battle. Yet we respond with more laws and tougher enforcement in the face of failure."
The same holds true for the death penalty, she said. "Study after study demonstrates the inequity and injustice that accompanies this punishment. Given the fallible nature of human beings, there is no way to guarantee that only the guilty will die.
"The law should address the concerns of our citizens," Crier said, yet law is often created and enforced for political reasons
"The tax code is the greatest source of corruption on Capital Hill" as tax breaks and favors are delivered to big campaign supporters, she said. Lax enforcement and exemption from regulations can be just as valuable to these groups.
Crier's statement that more than half of Fortune Top 25 companies "receive rebates every year instead of paying taxes" earned an audible groan from the audience
Crier also said that "judicial activism" is preempting the role of the legislature.
"Lawyers and judges now preempt policy areas that legislatures are not addressing. This should occur in Congress-not from court to court."
De Toqueville's prediction
"Alex de Tocqueville described our challenge more than a century ago, but he might have been writing today," Crier said.
De Toqueville believed our personal freedoms would be protected if we could voluntarily resolve the problems of society rather than permit the heavy hand of government to do it for us, she said. "If we lost our communal bond, then authority and social control would arise elsewhere."
"Man would yield his sovereignty to an immense power," he predicted, "one that does not destroy, or even tyrannize but one that serves to stupefy a people, reducing them to nothing better than a flock of timid and industrious sheep."
Crier has concluded that de Tocqueville's prediction was correct.
"The rule of law was never meant to be a substitute for community standards," she said. "We have come to expect everything from the law and very little from ourselves."
Not everyone loses in this trade-off, however.
In barely a generation, lawyers, politicians and bureaucrats have taken the palace without firing a shot, she said. "These groups control the creation and enforcement of law. The masters are those who can make, manipulate and enforce the laws. The rest of us are their timid and industrious sheep."
Time for a citizens' revolt
"The good news is, the answer is not in Washington," Crier said. "The answer is right here. We all have the ability to make these kinds of changes."
Crier paraphrased Margaret Mead: "Never doubt that a few people can change the world. In fact, that's the only way it ever happens."
On Sept. 11, 2001, 19 people turned the planet upside down, Crier said. "They cost us billions of dollars, struck fear into the heart of every American and changed our lives forever.
"If 19 people can do that, then the intelligence and energy in this room alone can help cure the problems that are now ailing the medical profession."
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