April 2004 Bulletin

Crier offers “Prescription for Reform”

By Carolyn Rogers

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?

Journalist and former judge Catherine Crier shares her views on the U.S. legal system and outlined her “Prescription for Reform” at the 2004 Annual Meeting in San Francisco.
AAOS keynote speaker Catherine Crier diagnosed the problem before a standing-room-only crowd on March 11 at the Annual Meeting in San Francisco. Her “Prescription for Reform” earned a standing ovation from the nearly 3,000 orthopaedic surgeons and others in attendance.

Combining her own experience with the insights of both historic and contemporary social critics, the lawyer/judge/journalist identified six areas in which the current legal system is failing: Fairness, transparency, reasonableness, pragmatism “just” compensation and compensation for legitimate injury only. Judicial advocacy and the creation of laws that do not address the concerns of the citizenry also were cited as contributory factors.

Lack of fairness
“The law has to be fair,” Crier said. “I suggest that it is not.”

To support her claim, she cited the example of the cigarette smoker who gets cancer and 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.”

The law also must be transparent, she said. “It must be known.”
Crier 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 possibly know them all.”

And police officers can't even rely on a rulebook, she says. “They don't know whether their judgment is good or bad until some court reviews their conduct.”

Legitimate injury
The law should compensate only for legitimate injury caused by another, Crier said, “But this is not the case.”

Punitive damages have skyrocketed into the stratosphere for the lucky plaintiff with the right jury, she added.

“If you were exposed to asbestos as some point but have never taken ill, that doesn't stop you from collecting…And if some hacker ‘identifies' a flaw in computer software—although no one has experienced any problems and no one can re-create the problem—that's still compensable.

“And we all know that doctors and hospitals will sometimes agree to an out-of-court settlement, not because injury was legitimate, but because they're afraid to leave themselves open to an unpredictable jury,” she said.

“Just” compensation
The law should provide “just compensation for injury,” Crier said. “It should not unfairly enrich the players, but it does.”

Virtually every lawsuit can be handled on a contingency fee these days, making the attorney a financial partner in the outcome. “We need to have a ‘loser-pays' court system in this country,” she said.

Class-action suits are accepted under the flimsiest of filings, and lawyers pocket millions of dollars while winning discount coupons for their clients, she complained.

“Your ‘rights' are being litigated whether you want them pursued or not. If you don't specifically opt out of a class-action suit—you're in,” she said.

Crier told the story of a recent airlines price-fixing suit, in which the plaintiffs received a discount coupon for a future flight. The coupons came with a number of restrictions, of course, and as the airlines predicted, few coupons were redeemed.

“The plaintiff's attorneys, however, pocketed $14 million for their efforts,” she said.

Her home state of Texas earned a hearty round of applause from the crowd when Crier cited a new Texas law that requires ‘like payments' to plaintiffs and attorneys. “If the plaintiffs are paid in coupons, then the lawyers are paid in coupons,” she said.

The law should be reasonable, Crier said, but often it is not.

Due to fear of litigation, labels now warn us against the most absurd events, she said. “The Wacky Warning Label contest sponsored by one of my favorite Web sites, Michigan Lawsuit Abuse Watch, offers some great examples.”

Some of the winning labels include a13-inch wheelbarrow wheel with the warning, “Not intended for highway use;” a household iron that warns “Never iron clothes while they are being worn;” or the baby stroller label that reads, “Remove child before folding.”

Other infractions of Crier's “reasonableness” standard include rules of due process that can keep bad teachers in the classroom for years or forestall a federal mandate, such as 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.

“That is not pragmatic,” she contends.

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.”

Citizens' concerns
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 the Fortune Top 25 companies “receive rebates every year instead of paying taxes” earned an audible groan from the audience.

Judicial activism is another increasing problem in this country she said. “Lawyers and judges are really preempting the role of the legislature,” she said. “Policy decisions should be made in Congress, not from court to 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 told the crowd.

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 explained. If we lost our communal bond, then authority and social control would arise elsewhere.

“He predicted that ‘Man would yield his sovereignty to an immense power—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 fears that de Tocqueville's prediction has been realized.

“We Americans have failed to shoulder our responsibilities,” she said. “The rule of law was never meant to be a substitute for community standards. 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. “We have abdicated our freedom, literally our democracy, to the rule makers. Our institutions now serve these masters, and 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.”

Quoting Margaret Mead, Crier said, “Never doubt that the work of a small group of thoughtful, committed citizens can change the world. Indeed, it's the only thing that ever has.”

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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