Does a Litigious Culture Undermine Our Capacity for Humility?

Litigious Culture?Shutterstock

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.

Discussion Summary

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?

6 Responses

  1. jposamen says:

    Thank you for this site. I was told several years back that over 95% of cases settle, that people are negotiating and compromising rather than going full-on through the court process. Isn't that an indicator that Mr. Olson's preference against litigation is winning?




    • Walter Olson says:

      Jordan — It's been true for many years that the great majority of cases settle short of final adjudication. It's hard to draw conclusions from that, however, about the social ills we discuss here. Sometimes a case settles quickly because the parties approach it in a reasonable spirit and the lawyers agree on how it would be resolved if it went to trial. (If those are the circumstances, of course, many disputes will settle without the actual filing of a suit.) Other times, parties do not settle until they reach the steps of the courthouse or until the jury is in deliberations, after millions of dollars have been spent on legal warfare. A society fortunate enough to have speedy and inexpensive court process, and a high propensity to settle disputes without the filing of cases, might paradoxically see a higher share of its court filings result in tried verdicts.

  2. McCurious says:

    I agree with you, Walter, on this point, setttlement is based upon pracitcalities.  If fewer suits were filed, more would probably get tried.  However, pre-suit mediation has been tried in some jurisdictions but without much success I know of.  It is usually in the interest of the defendant, if he is the person with the most information about the case, to clam up until forced to disgorge the information.  This is particularly true in cases involving persons whose ability to make a living has been impaired by the incident giving rise to the suit.  Partly this situation came about when we became ultra-urbanites and virtually anonymous.  We pay no price for lying or being suit happy and a lot of cases can be settled for the so-called “costs of defense” which economically pays off the instigators for bringing the case in the first place.

    It also seems to me that we have a chicken and egg situation.  Our litigious culture is nourished by pridefulness, you have no argument from me on that score.  But what is the source of the increase in pridefulness which we have seen over the last fifty years? For instance, there has been an approximately eight fold increase in the percentage of children born in this country to unmarried women between 1950 to 2007.   Is this due to pridefulness or something else? Are women who believe that they don’t need men to raise children exhibiting a form of pridefulness. Is the pride of men who would prove their alleged manliness by fathering numerous children with different women a matter of pridefulness? Is the frivolous spending of the proceeds of the home equity loan or line of credit which the homeowner took out on his appreciated home brought on by pridefulness?  These other situations may or may not be related to the aspect of pridefulness which encourages litigiousness but from my point of view the litigious culture is merely a symptom of the disease of pridefulness, not its cause.  McCurious

    • Walter Olson says:

      A couple of quick points of agreement: almost every area of social life, not just dispute resolution, can go wrong when the needed tincture of humility is missing. And mediation is far from a cure-all; traditionally it works best when there is hope of repairing a damaged relationship between the two sides, and that is less relevant where (for example) the two sides are strangers.

      Which brings me to one of McCurious’s most interesting points: “when we became ultra-urbanites and virtually anonymous.” In America, litigiousness often does thrive in large, anonymous cities, and some scholars have hypothesized that “repeat player” effects within smaller communities — in which an abusive litigant might expect to cross paths again with the same judge, lawyer or opponent — helps explain why places like Vermont and South Dakota are so much less litigious than Chicago, Philadelphia, or Los Angeles. That still leaves unexplained why many large cities with many strangers — from Toronto to Zurich to Osaka — do relatively well at avoiding litigiousness.

  3. JC says:

    When I was a young man fighting the dinosaurs through the snow to school, uphill both ways, the Canons of Law forbade the prosecution of cases on contingent fees.  This and only this is responsible for the horrible rise in groundless and (dare I say) toe-hold level litigation.  

    An off the shelf, boilerplate tort action costs the filing attorney only the filing costs, and tthe returns ,which started at a modest 10 to 15 per centum have now risen to two-thirds of any award, plus fees.

    Thus we see mulyi million dollar awards in class action suits, gaining the plaintiffs five dollar gift certificates (Max Factor, was it?) with the plaintiff’s attorneys getting a windfall of millions.

    A reversion to the Canons regarding Barretry, Champerty and Maintenence would, to my mind at least, obviate these problems. Not ot mention Conspiriacy to Sloth.

    • Walter Olson says:

      Although I believe we more agree than disagree on your overall argument, let me start by giving the other side its due. A contingency-fee lawyer would point out that under a no-fee-unless-successful standard lawyers will tend to turn down many cases with poor likelihood of success, even though some hourly-fee lawyers would have accepted some of those cases. He would also argue that many defendants stoutly resist making a settlement offer upon the mere filing of a suit, which means the lawyer must develop the case, sometimes at high expense. Moreover, at least when it comes to injury claims, the contingency fee has been accepted as a matter of law and bar ethics in America for quite a long time; Maine was the last of the 50 states to legalize it, in the 1960s. And again at least in the realm of injury cases (class actions are another matter) fees are more likely to run 30-40 percent than two-thirds.

      All that having been conceded on the other side, the point you make is vitally important. Most other countries’ legal systems — and ours, too, formerly — banned contingency fees as giving lawyers too sharp an incentive to behave overzealously in search of maximum damage payouts. While contingency fees do tend to weed out low-settlement-value cases, many low-merit cases are not low-settlement-value cases, whether because of a credible threat to inflict high costs on an adversary, or because the lawyer can skillfully confuse the factual merits before a judge or jury. Finally, the decay of old rules against barratry (stirring up of litigation), maintenance and champerty (furnishing money to keep someone else’s lawsuit going, typically in exchange for a share) vividly encourages the evils that Lincoln condemned.