The ProblemCHAPTER 1

If all you wanted to know was the nature of the problem and not how to navigate the dangerous waters, those titles say it all. Lawsuits are a major concern in every facet of life and commerce.

It is not only the big suits that have gotten out of control, but also it is the barrage of smaller lawsuits that puts everyone at risk, increases the cost of just about everything and casts a pall of fear from never knowing when one will be sued.

From homeowners who could lose it all as a result of a freak slip and fall accident to the small business that can be forced into bankruptcy from a myriad of risks, to the professional whose practice could disintegrate from a claim of malpractice, everyone is at risk.

We do need lawyers and a system that allows one to be fairly compensated for loss as well as to act as a deterrent to poor behavior. The fear of legal action does make the big corporation behave better, gets the homeowner to shovel the snow, the driver to be more alert and the doctor to be careful in administering care within his/her expertise and not beyond. However, this legal system was never meant to become a lottery with the winner getting every possible dollar “deserved” no matter how ridiculous the case, while enriching the agent of the system, i.e. the lawyers, along the way. It was never meant to work in an uncontrolled 2environment of greed and false witness. To the contrary, if nothing is done to make changes, not only will the system become perverted and extreme, but also it will ultimately fail.

As soon as a tort system becomes incentive-based on a percentage of the award, it runs the risk of abuse. The more exaggerated the claim the more that percentage is worth. The more the percentage is worth, the greater the incentive to press the bounds of ethics and common sense.

I remember having lunch with a doctor who was in a fender-bender. He experienced a cut below his lip from impact with the steering wheel. The resultant scar was around half a half-inch long, caused no pain, and was hardly noticeable. He bragged how his lawyer told him to speak with a lisp during the deposition to make the nature of the injury appear much worse than it was; a tactic to scare the insurance company away from a trial. He was surprised how this ploy allowed him to receive a settlement from the insurance company of $100,000 (circa 1980). So here we have a professional, perjuring himself, admitting it to colleagues and proud about the experience and the outcome. Not only was the doctor lying, but also he was instructed to do so by an agent of the court who would have been disbarred had this story come to light.

Is this the exception? Sadly, I doubt it. People have come to believe that they are entitled to money for the slightest of injury and they expect it to be a windfall, a lottery win where there is not even a fee for the lottery ticket. Some people seem to think nothing of perjury in their greed-driven quest for money. There is no consequence to bringing a case, so why not try?

In the inner city there is an expression, “I'm gonna catch a case.” This means: I am going to get involved in a criminal justice case.³ Some have used this term to denote getting involved in a personal injury lawsuit. People actually try to get in the system knowing that there is an easy buck to be made with little risk. The problem got so bad in some cities that they had to install cameras on buses to prove who was actually on the vehicle when an accident occurred.⁴ Otherwise the insurance companies had to defend against the suits of many more people than were on the bus at the time of an accident. They learned that pedestrians who witnessed a bus accident would climb through the windows to be counted in the lawsuit. Is this fraud? Certainly! Are there serious consequences? Not usually.

Can you imagine going to a doctor who gets paid more the longer he draws out a procedure? That is exactly what happens with the legal system. If the legal fee for a divorce was set at a fixed amount, you can imagine divorces getting done very quickly. To the contrary, the incentive is to keep the process going on and on to generate fees.3

Is it fair that the same injury may compensate two individuals at vastly different amounts as a result of the talent of the lawyer, the sympathy of the jury and the willingness to exaggerate the case, and even more so if outright lying is employed? Is it right that a person injured by a noninsured with empty pockets gets nothing while an injury caused by a deep pocket can be compensated at an egregious level?

We all know the answers to these questions, and we know there are solutions. The main problem is the reluctance of lawmakers to make changes because they have possibly been influenced by the trial lawyers who are very large political contributors, or is it because so many lawmakers are lawyers looking out for their own kind?