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Brooks Schuelke
Brooks Schuelke
Contributor •

George Will and "Litigation Nation" Got It Wrong

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Even though he and I don’t agree politically, I generally like George Will. In fact, I even did a school report on his book, The Morning After. But his agreement in Sunday’s piece Litigation Nation, agreeing with Phillip Howard’s Life Without Lawyers: Liberating Americans From Too Much Law, is wrong.

In a utopian society, maybe those of us that represent plaintiffs in personal injury or commercial litigation cases might not be needed. But this isn’t a utopian society. This is a country where:

1. 100,000 Americans die each year from medical errors, and we lose $100 billion due to prescription errors;

2. Tens of thousands of Americans die annually in alcohol-impaired driving crashes and drivers engage in other dangerous activities such as texting while driving;

3. Accountants, trust officers, attorneys and other fiduciaries continue to steal money from their clients; and

4. Pharmaceutical companies continue to commit fraud.

I would think that in the age of Enron, Worldcom, stories of widespread mortgage fraud, and Bernie Madoff, people would be running away from a system of caveat emptor; not running toward it. The sad fact is that this country needs lawyers and the civil justice system. It is no coincidence that James Madison said, "Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."

Now, are there frivolous lawsuits that shouldn’t be brought? Sure. But there are also frivolous defense — when defendants or their insurers assert ridiculous defenses to try and avoid paying legitimate claims. Both are byproducts of a critical system, and the system allows judges to sanction those claims if the judges hearing the cases are willing to do so.

And are there overreactions with ridiculous warnings or rules trying to limit suits? Sure (who doesn’t think that a products claim brought by someone swallowing a fishhook wouldn’t be thrown out?). But don’t throw the baby out with the bathwater. Fault doesn’t necessarily lie with the civil justice system, but with those assigned with trying to figure out how to respond to claims. While the school officials at Broward County chose to ban running at recess (as Will mentions), there are thousands of schools across the country where children are allowed to run free and play on fully functioning playgrounds during recess. Is a bone-headed decision by a school district an indictment of the civil justice system or of the school district making the decision?

I’ll also add that readers should be cautious about reading stories, such as Will’s, based on anecdotes alone. In my experience, there are always two sides to an anecdote or even instances where the anecdote never happened (see the common Stella Awards). For instance, Will mentions a seemingly frivolous lawsuit that was settled for $90,000.00. I don’t find a lot of defendants throwing $90,000.00 at frivolous claims. Will also mentions a claim by a child that broke his leg sliding down a slide head-first. Frankly, I’m not sure how that could happen absent some additional facts that might explain why a claim was made.

For an in depth look at Will’s anecdote of a supposed run-a-way jury, read Maxwell Kennerly’s blog post.