The Threat From Lawyers In Congress

The Threat From Lawyers In Congress
Mike Bouchard, a candidate for U.S. Senator from Michigan recently said “It’s (the U.S. Senate) become more career politicians and lawyers. “ Bouchard is correct but the extent and consequences of the problem have not yet been described adequately. Sixty of the one-hundred U.S. Senators in the 109th Congress are lawyers. This is a super majority and they control the law making process as they wish. Just sixty men, from a few, liberal law schools are able to control the government of the United States. If control of government is the aim, it is hard to imagine an easier way to achieve that control. Of course, the lawyers on the Supreme Court have ruled that Federal Term Limits are unconstitutional. The Senate has talked of Tort Reform for many years but with lawyers sixty percent of the Senate, it is no wonder that nothing has changed. My concern is not only the money wasted on lawsuits but more importantly, the effect that the abuse of the judicial process is having on the United States. It is changing voter’s perception of the role of government in a very destructive manner and results in Congress being overloaded with lawyers. Frederick Bastiat said “ When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law.” Parade magazine reported on the number of lawyers in the United States. There is a lawyer for every 14 people in Washington D.C.!! .
There is an essay titled “The Threat From Lawyers Is No Joke”. The reference is The Threat From Lawyers Is No Joke, Imprimis, Hillsdale College Publishers, Volume 33, March, 2004.
July 24, 2002, it was reported that Mr. Caesar Barber of the Bronx, New York, filed a lawsuit against McDonald’s, joined by other lawsuits against Wendy’s, Burger King, and such fast-food chains. Mr. Barber said that he was under the impression that McDonald’s hamburgers and French fries were healthy foods. Sure enough, he became obese, developed heart problems and was not a well man. Then there is the woman who spilled hot McDonald’s coffee on her lap and sued for multi-millions. Both Mr. Barber and the coffee-on-the-lap woman won their lawsuits and were awarded millions of dollars. Many of us were amazed that such suits could succeed, but the tobacco litigation lawyers saw it as just the next step in using the courts to line their pockets. If the charade had stopped here, there would have been no permanent damage to society. It did not stop.
A George Washington University Law School professor was quoted in Time: “A fast food company like McDonald’s may not be responsible for the entire obesity epidemic, but let’s say they are five percent responsible. Five percent of 117 billion dollars is still an enormous amount of money.” Then, Northwestern University Law School organized a conference on how to sue fast food makers that was attended by scores of lawyers. One of the lawyers, a Rutgers Law School graduate-told Time: “It’s a very important and pressing issue and its outcome will be with us for years to come. I’m hoping to build a career out of this issue.” All this was taken seriously and defended by the New York Times who wrote; “We’re not saying these lawsuits should win, but what can they hurt?”. We now know they can hurt a lot!
The Texas woman who ran over her cheating husband in a hotel parking lot had a lawyer who sued the hotel for negligent training of parking lot attendants. The hotel was responsible for making it too easy for the woman to run over her husband.
A thief in Framingham, Massachusetts, who stole a car from a parking lot, drove off and then crashed and died. The family of the thief sued the proprietor of the parking lot for negligently making it too easy to steal a car from the lot.
A California drunk, passed out on the tracks, sued the Union Pacific Railroad for being negligent in hiring an engineer and conductor who did not sound the train horn soon enough. They were busy applying the brakes trying to avoid hitting the drunk.
In New York City, a jury awarded $14.1 million to a woman who tried to commit suicide by laying down on the subway tracks. She survived so the city and its taxpayers paid the bill.
The impression that lawyers are more interested in money than integrity is obvious.
We used to understand that the suits described above were wrong and would not have been imaginable. Most of us still think they are wrong, but they are not unimaginable anymore. Litigation is one of the most unpleasant things that ever happens to a person. It is incredibly expensive in cost, time and energy and an assault on the reputation of at least one of the parties and often both parties. Sixty years ago a lawsuit was rare because of the cost, but most of all because the contending parties recognized that it was to their financial benefit to not hire a lawyer and go to court. Before the late 1950’s, the American Bar Association forbid its members to advertise to the public. The no-advertising rule was in place to stop lawyers from stirring up litigation for their own benefit. That was changed, and now we are told that we deserve to get our rewards, even when the rewards were lost due to our own negligence. Charges are leveled making an assault on the parties privacy, reputation, and forcing them to answer questions under oath. The aim is to win, not necessarily find the truth of the matter. It has become a breach of the social peace. A suit used to be seen as a necessary, but last resort. A law suit should be embarked on only in strong cases- You will want to arrange the rules of your legal system in a way to discourage weaker cases from going to court. We do not do this today. In fact, we have intentionally dismantled such rules.
Nearly every other country, except the United States, recognizes the danger in litigation for profit. They have rules that require the loser in a law suit to pay the victim of the lawsuit to make him whole for what he has lost defending himself. In the middle 1960’s the ACLU managed to change that rule so that if the ACLU wins, the loser who was sued, pays both the ACLU costs and the cost of trying to defend himself. The kicker is that if the ACLU loses the suit, the defendant is still forced to pay the cost of defending himself and pay the cost of the losing ACLU who brought the suit to court. This little known rule change was inserted in the Voting Rights Act of 1965.. Apparently, the ACLU believes if everyone, ever, did nothing wrong, then the ACLU would not have to bring any law suit. The ACLU thus has arrogated to themselves the power to decide the merit of the case even before the defendant has been sued. The ACLU wins both ways!! The United States once had rules discouraging ill-conceived litigation, and advertising by lawyers. That has been changed and we are the worse for the change. The change started in the Law schools in the 1960’s and 70’s. Litigation was taught not as a necessary evil, but as a positive virtue. The law school liberal professors came to dominate the elite law schools and we have not been the same since.
The super majority of lawyers in the United States Senate, 109th Congress means that just sixty men, from a few, liberal law schools are able to control the government of the United States. If control of government is the aim, it is hard to imagine an easier way to achieve that control. Of course, the lawyers on the Supreme Court have ruled that Federal Term Limits are unconstitutional. They take care of their own.
LITIGATION AS A VIRTUE
This new view of litigation as a virtue says that litigation deters wrongful conduct. The more lawsuits that are filed, the more people will behave carefully according to the lawyer’s view of society. Litigation is also touted as a way to redistribute wealth from those who have it to those who don’t. In this view, the more litigation, the more justice. And the more money lines the pockets of the lawyers. Who can be against justice?
Litigation has gone from being a last resort to a socially beneficial action, and lawyers who advertise “Sue someone and let’s see how much money I can get for you” are not seen as sleazy but as public spirited citizens spreading justice.
In nearly all Democratic, citizen elected governments, the court systems are designed to find first, the truth of the matter under litigation. Once the judiciary feels the truth is known, the trial can proceed to a decision.. Not so in the United States. The rules of evidence require the prosecution, if they find evidence that might exonerate the defendant, to tell the defense the nature of the evidence. However, if the defense finds evidence that suggests the defendant might actually be guilty as charged, the defense is not required to tell the prosecution the nature of the incriminating evidence. The defendant might actually be guilty as charged, but is set free. The real truth of the matter is not important, only winning the case becomes the goal. . The subsequent wrongful death suits, for money, are the result of such cases. It is not hard to call to mind a recent famous murder case where this happened.
If litigation is a social positive, then the old rules discouraging lawsuits don’t make any sense. In the 1960’s and 70’s lawyers began changing the rules to make it easier to sue. The present rules of discovery now allow a person to demand information from his opponent. This opened the door to the “ fishing expedition”. “I don’t know for sure whether you have done me any real wrong, but please hand over the contents of your filing cabinets so that I can find out”. It became easier to organize class action suits, even when the plaintiffs don’t even know they are suing someone! The plaintiffs never see much, if any, of the money, but the lawyers sure do! The rule of assumption of risk was weakened so that, for example, if you go to a baseball game and get hit by a foul ball, some lawyer wants to help you sue. The former rules would have said you have no grounds to sue because everyone knows that foul balls happen at baseball games. If the point of lawsuits is to encourage ball clubs to be more careful about where they allow their players to send foul balls, and if redistributing wealth is important, then the new rules make sense. Many courts agreed and the lawyers were happy.
The new rules make it easier to sue and sure enough, more litigation resulted in more money extracted from the public. The litigation share of the GNP has tripled over the last 50 years and we spend two to three times more on lawsuits than other industrial societies. The cost is $721 per citizen which, for a family of four is $2,884 a year. Are the citizens getting their money’s worth?
Medical malpractice suits are driving doctors out of high risk fields such as obstetrics, neurosurgery and others. The high insurance costs cause some Americans to not afford medical insurance and so the hospital emergency wards are full of people who know they will be treated without having to pay for insurance or the hospital’s full cost of the treatment. The hospitals are not able to make ends meet any more and the five dollar bandaid aid ten dollar aspirin tablet is the result. The people with no insurance are able to get treatment, even with no insurance. The politicians love to say that government provided insurance is needed, but they don’t say that the sick are still treated. No politician ever turned down a government program. Even when the government is the cause of the problem!
The Harvard University study of New York hospitals that was cited by both sides in this controversy, was very revealing. The part of the study that has been best advertised is that in the majority of cases where people are injured by negligent care in a hospital, they never sue. However, the part that is not told is that the same study showed that in the majority of cases where people do sue, experienced reviewers could not identify any negligence. Thus, we have a lot of lawsuits with no negligence and a lot of negligence with no lawsuits. However, the same Harvard study found that a great many of the lawsuits filed when there was no negligence, were still able to successfully obtain money, thus driving up the cost of medical treatment. The real cost is the money plus demoralization that spreads in a profession like medicine that says that being the best possible doctor will not protect you from being sued. The warnings on products tie the manufacturers in knots and are only an attempt to protect themselves from lawsuits. The bag of nuts that says “Warning, Contains Nuts”, is only one example of hundreds. The fear of lawsuits also prompts employers to avoid telling the truth about former employees who can be a threat to society. The killer nurses can go from hospital to hospital because their former employers are afraid of being sued for a negative recommendation.
GOVERNMENT BY LITIGATION
The litigation revolution has begun to transform American politics. The “litigation lobby” has become one of the three or four most important financial bases of the political parties. This financial involvement in politics has caused litigation to become a substitute for the political process. It used to be that citizens organized to influence the state or federal government to achieve legislation to solve a perceived problem. Not any more! If you want tighter control over tobacco, the environment, fat foods, guns, automobiles, etc. all you have to do is call 1-800-LAWSUIT. Operators will be standing by around the clock and if the lawyers can get a share of the monetary reward, you just lean back and watch them go to work. Why did this elimination of the political process gain so much? It is because the politicians, who see re-election as most important, do not have the guts to do the job they were elected to do. Politicians created the bureaucracy and gave it the power to make regulations that have the force of law. The politicians avoid the risk of irritating the voters and thus help to insure their re-election. If government will not make necessary changes, the lawyers will!! Thus taxes and changes in the law originate not from the political process but from the litigation process. American Lawyer magazine published an article on the origins of gun litigation, in which it interviewed the lawyer who had dreamed it up. The article explained that the lawyers promoted government by litigation; thus the statement “that the plaintiff’s bar should act as a “de facto fourth branch of government” one that achieved regulation through litigation when legislation failed“. Richard Scruggs, the private lawyer who organized the tobacco litigation (and whose firm got an estimated one billion dollars for it) was profiled in Time who reported: “Ask Scruggs if trial lawyers are trying to run America, and he doesn’t even bother to deny it: “Somebody’s got to do it”.
“What are the differences between this newly contrived fourth branch of government and the three branches that the founders established in the Constitution”? The differences start with the manner of selection. Those in the fourth branch don’t have to worry about the safeguards of re-election, getting confirmed by the Senate or the transparency that is built into our political system. Their activity takes place behind the scenes, unreported, by un-elected bureaucrats. The voting public is not admitted to the negotiation and if the public does not like the result, there is not much they can do about it. The proclaimed goal of trial lawyers is to hold every profession and industry accountable for their actions, yet they have created a litigation-based policy-making process in which they themselves are almost entirely unaccountable. William Greider, a leading left-wing journalist, has proposed in Rolling Stone that trial lawyers have emerged as the natural leadership of the left in America today. Our Senate refuses to do the job they were elected to do. Their partisan politics and re-election become more important than a healthy United States. Government talks of tort reform, but the problem does not originate there. It is in the law schools where the ideas that underlie the new way of governing were born. This is where our judges, lawyers, many politicians and many bureaucrats learned them. The new litigation system is telling the public that some distant institution, with a lot of money, is responsible for each individual’s problems. We need to understand exactly what we did wrong, in changing the rules of our legal system, and handing the trial lawyers so much power.
Phil Valentine, a Tennessee radio host helped lead a citizen revolt against an attempt to impose a state income tax —- Tennessee is one of the few states that has no such tax. The politician’s lawyers resorted to many ludicrous expedients. A state income tax is actually unconstitutional in Tennessee, but the constitution also says that the legislature "shall have power to tax merchants, peddlers, and privileges." Including -- you guessed it -- the claim that working for a living is a PRIVILEGE, not a RIGHT. Thus, the pro-tax lawyer-politicians decided that earning a living must be a PRIVILEGE, not a RIGHT . . . so, therefore, an income tax must be constitutional after all!
Mike Bouchard has identified an extremely serious problem and we need to give him a chance to solve it by helping to elect him to the United States Senate. Unless we change the lawyer culture, it will remain true that if you want to injure someone in America, you can do it with impunity with a lawsuit and no one will lay a glove on you. Bill Clinton once said that the “politics of personal destruction” is wrong, but then went ahead and did it anyway. The United States has fought wars against totalitarianism but the new government by law suit is totalitarianism disguised.

Older!! Wiser??