Life Without Lawyers
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Legal reformer Philip Howard doesn’t really espouse a life without lawyers. He is a lawyer himself, and one would suppose that he doesn’t want to put himself out of business even in the quest of a better life.

Embroidering on a theme he elaborated in his seminal 1995 book, “The Death of Common Sense: How Law is Suffocating America,” Howard imagines a world with less strangulating regulation, less threatening litigation, more thoughtful and better managed judging, and, above all, more concern about outcomes than horrific legal consequences.

Howard’s approach is largely anecdotal, and he concludes that fear reigns supreme. He recounts instances where teachers shrink from evicting disruptive students from the classroom for fear of being sued. He tells of doctors who over-test, over-prescribe and over-circumscribe the quality of care for fear of being sued. Municipalities, he says, close playgrounds and parks for fear of being sued. Manufacturers put absurd warning on labels such as “Remove Baby Before Folding Stroller” for fear of being sued. Excessive jury verdicts in civil cases are left undisturbed, and most defendants’ summary judgment motions are denied because judges are afraid of being reversed. All rights must bow to the most fundamental right in American society: the right to sue. To question this right (it has become so imbedded in our cultural fabric) is the moral equivalent of questioning any of the Ten Commandments. In short, he says, “Americans increasingly, go through the day looking over their shoulders instead of where they want to go.” It is in the courts, not the angry gangland streets, where we evidently prefer to get even.

Howard sees the problem in stark significance. The purpose and effect of a lawsuit may be to redress an injury by compensating the victim, but there is a secondary consequence as well. A judgment will have the effect, he contends, of inhibiting our freedoms in the future. In 2005, a jury awarded $6 million to someone who had broken his leg on a town sledding hill in Greenwich, Connecticut. This might have been bad enough, but then neighboring towns soon announced they would no longer permit winter sports on town property. Because a teacher was sued for touching a student, all teacher-student contact, however appropriate, is universally banned in the schools. The chilling effect is such, argues Howard, that swimming teachers will no longer hold up a student in the water. Really?

According to Howard, courts should weigh not only the foreseeability of the accident, but in the words of the English House of Lords in a 2003 case, “the social value of the activity which gives rise to the risk.” Courts should not make judgments that encourage authorities to restrict access to normal and healthy activities, affecting the enjoyment of countless people. As one law lord posed the rhetorical question, “Does the law require that all trees be cut down because some youths may climb them and fall?” The answer is, of course, “No, but you have to take your chances.”

The problem, as Howard sees it, is that Americans have not figured out the delicate balance between authority and freedom. Since the 1960s freedom has been redefined as “protections against all authority, public or private.” Hence, concepts such as due process, originally designed to protect the individual against the excesses of the government, now leave open to legal attack almost any adverse decision, whether in the school, the workplace or even the home.

All this is a dose of pretty strong medicine. But, the book leaves us with no practical vision of where we go from here. Howard would take most civil cases away from the jury and place such daunting decisions in the lap of new administrative tribunals. Of course, this would require a constitutional amendment. He would insist that judges crack down on obviously frivolous lawsuits , and cites a case or two where this did not happen, but forgets that there are stern and familiar sanctions available in most jurisdictions against clients and lawyers who bring such suits.

The author would vigorously regulate medical malpractice claims, arguing that studies show 25 percent of settled claims are meritless; that doctors are paralyzed by fear in dealing with patients because of the malpractice system; that we could save billions in healthcare costs if doctors were not confronted with spiraling premiums for malpractice insurance; and that such cases drag through the courts for years. He does not deal, however, with powerful countervailing arguments that the system, at least in New York anyway, is heavily loaded in favor of the doctor who enjoys a shorter statute of limitations than other professionals; that pre-judgment interest is unavailable in medical malpractice cases; that expert testimony from another doctor who is vetted in a Daubert-type hearing, is required before a case can go to a jury; and that insurance companies are at least as culpable as plaintiffs’ lawyers and huge jury verdicts for effecting unreasonably large settlements.

Among Howard’s many recommendations for systemic change is to “rewrite Washington.” This would mean, in Howard’s view of the world, expanding the “discretion” of public officials instead of shackling them in a thicket of laws and regulations. In a contemporary environment of less risk, little leverage, more robust regulation and stricter accountability, we all should wish him luck, as well as ourselves.

This is a highly readable and thought-provoking, even if at times quixotic, book. At a time when we are re-evaluating so many institutions in American life, why not the law?

James D. Zirin is a trial lawyer. He is co-host of the cable television program, Digital Age, on which Philip Howard has appeared as a guest.