In Shakespeare’s King Henry VI (part 2) Dick the Butcher declares, “Let’s kill all the lawyers,” a statement which, in the context of the play, is actually one in support of lawyers, but if Shakespeare were living today, I’m not so certain that Dick and Jack Cade wouldn’t be supporting the lawyers [since Cade’s purpose was to undermine the rule of law], given not only the damage they’ve wreaked on U.S. society with the excesses of tort claims, but also the unseen and unacknowledged damages that have been incurred at almost all levels of society as a result of the efforts of businesses, governmental entities, and other organizations to avoid litigation.
Trial lawyers continue to insist that medical tort claims lawsuits are necessary to remove bad doctors, while ignoring the facts that very few such claims ever lead to a doctor being removed from practice and that the abundance of medical malpractice lawsuits has increased the cost of malpractice insurance astronomically in some specialties, even for those doctors who’ve never had a claim against them. An associated problem is the fact that doctors often ask for more diagnostic tests than medically necessary, just so that they can claim that they haven’t overlooked any possibility and to bolster themselves against malpractice claims. As a result, healthcare costs increase. Everyone focuses on the issue of costs to the victims of bad medicine, but there’s been no real consideration of the costs to the rest of the profession or the increase in costs for healthcare insurance, and for those purchasing it.
While this is the most public example of the costs of attorneys, it’s far from the only one.
Post-tenure review is now becoming more and more widespread at universities, despite the fact that a very small percentage of tenured faculty actually abuse their position or fail to meet their obligations, yet the post-tenure review documentation required at regular intervals takes goodly amount of time to prepare. It also takes a fair amount of time for the committees to review it, and yet very few faculty members are found wanting and dismissed. So why can’t universities employ a process asking suspect faculty to submit such paperwork, rather than spending all the time and effort to review all tenured faculty? Because the lawyers fear lawsuits alleging discrimination, and the post-tenure review process insulates the university from the claim of discrimination. But a faculty member dismissed by either process can still protest and file a lawsuit. In effect, post-tenure review does little to weed out tenured faculty who aren’t cutting it. What it does do is increase the paperwork burden on the rest of the tenured faculty, because the documentation required is extensive, while making the job of a few university lawyers and administrators easier.
Another area where lawyers engage in costly litigation is in “patent trolling,” where lawyers essentially practice a form of legal shakedown by making “patent infringement” claims on productive companies, often on the flimsiest of cases. All too often, the companies being sued simple settle, because the time and effort to fight such claims would be even greater than the settlement costs. A recent study pegged the unnecessary costs of patent trolling at nearly $30 billion annually in direct costs and more than $80 billion in indirect costs.
The same sort of process occurs in business, in everything from warranties, privacy policies, personnel policies, you name it. Legal documentation is expanding everywhere. Why? Because organizations are trying to minimize the chances of costly litigation. Why do they need to go to such extremes? Because other lawyers are looking to fatten their finances through litigation or the threat of litigation. This is incredibly obvious, yet, with the exception of malpractice claims, I’ve never seen even an estimate of the national cost added to business, education, and life in general by litigation and the threat of litigation. And, of course, Congress refused even to consider limiting malpractice tort claims under the Affordable Care Act, possibly because trial lawyers contribute considerable sums to congressional campaigns.
I’m not against lawyers, and there are more than a few in my family, but I’m certainly against litigation and legal processes that don’t improve matters and whose costs continue to spiral.