When we speak of the ills of the American civil justice system, we tend to fall back on a few familiar themes. We cite the economic harms of litigation: the way it worsens the business climate, leads doctors to order unnecessary tests, and so forth. And we criticize persons who file meritless complaints – a criticism that comes easily to most of us, knowing our own grievances to be meritorious.
So far as it goes, this critique is accurate enough. Yet it is also badly incomplete. It doesn’t include some of the less tangible damage, both to society and to inward qualities such as our capacity for humility.
Consider what the best-remembered American lawyer of the nineteenth century had to say about unnecessary suit-filing:
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
Never stir up litigation. A worse man can scarcely be found than one who does this. … A moral tone ought to be infused into the profession which should drive such men out of it.
Thus Abraham Lincoln, in his “Notes on a Law Lecture.” Between Lincoln’s critique and ours, to be sure, there is much overlap. Like us, Lincoln is keenly aware of the cost of litigation. (Most likely he was familiar with Voltaire’s epigram: lawsuits have ruined me only twice, when I lost and when I won.) Long before the emergence of our modern class-action lawsuit, the future President also knows well that some quarrels arise only because lawyers have dreamed them up.
What comes naturally to Lincoln, as it does not to most of us, is a frankly moral critique. A lawsuit, to him, is a war, and a settlement a peace. Who are the belligerents in these small wars? Our “neighbors” — a term by which he includes the adversary. Practical challenges aside, these disputes give each of us the choice of being a good man or something less than that. We can approach a dispute with thoughtful humility, or we can approach it in a spirit opposite from that. Again and again Lincoln addresses young lawyers in the language of right and wrong: elsewhere in the same passage, he applies to the one who stirs up litigation the striking epithet of “fiend.”
In America as in other societies, Lincoln’s view of litigation used to be the prevailing one. Religions and ethical systems over the ages have tended to regard litigation and legal contentiousness as things that needed restraining and litigiousness as a kind of character flaw, a vice even, which might afflict individuals or groups of persons.
Today things have changed. We are less likely than our forebears to worry about being whispered about as litigious, and more likely to boast of “knowing our rights.” Some of us are exquisitely sensitive to possible offenses committed against us, but less prepared for the compromises and courtesies by which we acknowledge the needs and legitimate interests of others. From both legal intellectuals and popular figures like Ralph Nader and Erin Brockovich, we have learned to recite the arguable ways lawsuits can accomplish good, as by deterring future misconduct and compensating past victims. Described that way, litigation might sound downright appealing. By the 1970s law school literature had begun to describe the older view of litigiousness as a vice as something quaint, even “medieval”. In 1985 the U.S. Supreme Court broke explicitly with the earlier view: “We cannot endorse the proposition that a lawsuit, as such, is an evil.”
Once litigation is seen more as a positive good than as a necessary evil, it will make sense to revamp many old rules that once cabined and restrained it. That is exactly what happened over the second half of the Twentieth Century in America, a story I told in my 1991 book The Litigation Explosion: What Happened When America Unleashed the Lawsuit. Rules of civil procedure were revamped to the benefit of those wishing to get into court. Ethical rules against lawyer promotion of litigation were relaxed or discarded. Damages were made more generous, class actions facilitated, attorneys’-fee entitlements developed to encourage suit-filing, and so on. Who, after all, could oppose broader “access to justice”? As intended and expected, more lawsuits were filed and more money changed hands
If we wish to challenge these trends, we will naturally want to examine all the policy options legal thinkers can provide, from closer judicial supervision of cases to wider use of “loser-pays.” But equally important is to relearn what earlier generations knew about litigation, a task well suited for the realms of history and literature.
Most people have heard of the endless case of Jarndyce v. Jarndyce in Dickens’ novel Bleak House, which blights the prospects of the families caught up in it until ending at last when the lawyers’ fees consume the original estate. As a parable of litigation psychology, though, I am drawn to a work much less known to English readers, Heinrich von Kleist’s 1811 novella Michael Kohlhaas, a masterpiece of German literature and favorite of Kafka. (American writer E.L. Doctorow adapted its themes in his novel Ragtime.) It is the story of how one man’s lawsuit escalates to the point of threatening civilization itself.
Based on the life of a real 16th century man, the action begins when abusive noblemen cheat Kohlhaas, an honest merchant, of two fine horses they covet. He begins a lawsuit, and when it fails in the corrupt local courts pursues his case on appeal. By degrees the dispute grows exceedingly complicated and expensive, pulling in more parties and fresh grievances.
As Kohlhaas is denied the justice he seeks, his character, at first gentle and kind, hardens. Losing interest in any cause but that of his legal rights, he gathers followers and organizes a violent revolt, laying waste to the countryside and robbing and murdering innocents, for which he is sentenced to death. As he approaches the hour of execution he finds that his lawsuit is won and the wrongfully taken horses restored to him. He goes “joyfully” to his death.
Note that whatever else Kohlhaas is, he is not a frivolous litigant: long into the story, justice lay on his side. Lincoln grasped the same truth: it is not alone from those whose cases are bad that we must be on watch for litigiousness.
Nor could he have predicted– few litigants do predict – how his quest for justice might escalate, leading him to commit depredations that would have shocked his former self. As nations so often do, he entered war with no clear plan for a return to peace.
As with most literature of the first rank, differing readers have drawn widely different lessons from the tale. Many, especially but not exclusively on the political Left, have interpreted Kohlhaas as a proto-revolutionary and heroic Robin Hood figure. But Kleist himself would seem to advance a different view. He writes that Kohlhaas became “horrible” because he “carried one virtue to excess”. His sense of justice grew into an infatuation with his own wrongs, to the point where he lost all perspective on a world that is filled with the competing interests and commitments of other people. He lacked, in a word, humility.
A litigious culture indeed tends to undermine the capacity for humility of all concerned. Consider the case of judges, whom we now invite to resolve many questions of life once handled by custom, legislatures and markets. A litigious culture will tend to applaud judges who march boldly into new policymaking areas, and withhold enthusiasm from those who recognize courts as ill-situated to remedy most of the harms and inequities of social life. Lawyers, too, find their sense of hubris fed, as fame and fortune await those who corral “big” cases and clients through zeal and combativeness.
Above all it is litigants themselves who suffer when prolonged contention steels hearts into vengefulness. At the outset of a dispute, we often acknowledge that the other guy makes some decent points; but as we grow more invested in our case and the stakes rise, it becomes harder to accept compromise without bitterness, harder not to fall prey to hate. The spirit of litigiousness is a spirit that often yearns to see the opponent laid low, that seeks to “humble” him.
How foolish we are if we see a state of humbleness as something that needs to be inflicted to chasten our adversaries, without reflecting on how badly we need its benefits ourselves.
My essay noted that our public discussion is comfortable addressing the economic implications of a high litigation rate, but less prepared to address its implications for character and morality. Naturally we disapprove of frivolous lawsuits (as if anyone ever did approve of them). But we have often lost the sense, very much present in the literature of our ancestors, that litigiousness is a vice against which we must be equally on their guard when our legal case is colorable – something that becomes clearer when we realize that litigiousness is a vice closely allied to a virtue, zeal for justice. And I proposed that if one wishes to cultivate a check on the spirit of litigiousness, one might be wise to look to the contrasting spirit of humility.
Commenters raised several relevant questions. Is litigiousness inevitable given the advance of modernity or of impersonal urban life? (Probably not; big cities in other affluent nations often have relatively low rates of litigation.) Does the high rate at which cases settle short of jury resolution indicate that the problem is lessening? (Not necessarily, since most litigiousness expresses itself before final verdict.)
My chief regret is that we did not attract historical scholars to weigh in with more insight as to how great moral and ethical systems of the past have regarded litigation. We do know quite a lot about the civil procedure used in the courts of many great nations through history, as well as the church courts; and we know that some ages and nations have cabined the litigious impulse more effectively than others. But which philosophical precepts if any have made the difference?
As to procedure, we have many clear clues. Consider the most distinctive feature of American civil procedure, our refusal to make losing plaintiffs reimburse any part of the legal fees of winning defendants. (Lack of such a fee shift is known as the “American Rule,” while two-way fee-shifting, commonly known as the “English Rule,” in fact characterizes most systems other than ours.) The so-called American Rule is said to reflect a policy commitment to encourage the filing of even long-shot cases since they sometimes prove socially beneficial. But it also sends a powerful moral and ethical message. That message is: feel free to accuse someone in a doubtful cause; we will not rebuke or penalize you if your accusation proves to be erroneous; you owe them, and us, nothing.
Historian John Steele Gordon, in the Hillsdale College publication Imprimis, observes the results:
The American Rule was a relatively minor anomaly in our legal system until the mid-20th century. But since then, as lawyers’ ethics changed and they became much more active in seeking cases, the American Rule has proved an engine of litigation…. In practice, the American Rule has become an open invitation, frequently accepted, to legal extortion: “Pay us $25,000 to go away or spend $250,000 to defend yourself successfully in court. Your choice.”
The changes in legal ethics that Gordon mentions have been notable. Contingency fees for lawyers, long banned as unethical in most countries, are now fully accepted; the stirring up of suits, so odious to Abraham Lincoln, now stands under Supreme Court precedent as constitutionally protected speech; the furnishing of money to advance other people’s lawsuits, once deemed unlawful “champerty,” is spreading rapidly after being renamed “litigation finance.” For an exhaustive documentation of the results, see the important 2011 volume Lawyer Barons: What Their Contingency Fees Really Cost America, by Professor Lester Brickman of Cardozo Law School.
At the same time, many sophisticated analysts ardently defend the American approach to litigation. They argue, for example, that our distinctive fee and ethical rules are uniquely progressive in advancing the legal interests of the underdog. And they point out that suing can operate as a sort of safety valve: because Americans have unusually extensive recourse to courtroom remedies for grievances, they are less likely to turn to street violence or social unrest.
These contentions might furnish grist for future Big Questions.
Two New Big Questions:
1. Should law side with the underdog, or should it aspire to neutrality? Many relatively egalitarian societies, such as the social democracies of Europe, reject American approaches to litigation; do they prefer other ways of empowering underdogs, or could it be that they disagree with our definition of that term?
2. Is litigation justified as a way of displacing other, more dangerous and violent forms of individual and social conflict? At what point does turning grievances over to lawyers and legal process itself begin to worsen societal conflicts and divisions?