For Whom the Bell Tolls
It is sad to see how successful insurers and the other powers-that-be have been in brainwashing the American public into worrying about the reputed social costs of excessive and meritless litigation. One would think that even the slightest familiarity with American history starting with the Salem Witch trials going through the Haymarket trials onto the Los Angeles Police Officers trial and everything else in between would prove beyond doubt (not only a reasonable doubt) that the rich and other powers are more than able to take care of themselves and that we should be suspicious about any argument from them that there is some type of "social" threat in a procedure that sometimes hurts them. The nonsense that calls itself legal scholarship is worthless to counter these marketing ploys. Frankly, there is a Catch-22 situation that prevents any opposition because they cannot be countered unless one has had the misfortune of actually being a civil plaintiff or a criminal defendant, but in that case you have lost any credibility since everyone else - because of the propaganda - has no trust in you.
The funniest thing about the popular anti-litigation views is that it only applies to the other guy's litigation or defense and not of course to your own. I am constantly amazed by calls that I receive from conservative, potential clients living in a conservative, Simi Valley-like suburb who all of a sudden find themselves in need of a lawsuit to satisfy some injustice. They one day decide to argue a ticket with a cop and wind up arrested for disorderly conduct; they are completely indignant that their right of freedom of speech has been so violated. They lose their job after years of hard work because the boss is an idiot; they are sure that there is some right out there that has been violated. Their daughter goes to a hospital for a simple examination and almost winds up dead because the doctor is an idiot. They go into an intersection with their SUV that of course has the right-of-way when a Volvo driver busy admiring the safety features in his car runs into them because he or she also has the right of way. All these people expect that not only will they get millions for the injustice that has occurred but also that of course attorneys will be tripping over themselves to take their case on a contingency.
They are very quickly brought down to reality. Not only am I not interested in the case, but probably no one is since in this day and age before a conservative judge in their conservative, neo-nazi little suburban world they are lucky to get out of there without losing money let alone making any. If their case is not the basic personal injury case but involves some type of new idea or principle or even more likely involves an idea or principle to which his Honor the judge is not familiar, does not understand, or does not like, you are now in the world of "frivolous" lawsuit and "Rule 11" sanctions. I would like to see anyone busy complaining about contingent fees or excessive litigation take on a rich insurer for years while financing the case on a contingency and stay out of bankruptcy court.
The reality of the situation is that the reason we have contingent fees and the American system of fees in which each side bears their own costs is because after centuries of experience our early jurists realized that this was the only way to assure the middle class would have some judicial power (forget about the working class, they are without hope). Given that this is an imperfect world, of course this means that some nonsense lawsuits will get by. Still, for every frivolous lawsuit that gets by, there will be thousands of social injustices that have no legal remedy. Though frivolity will sometimes win and the insurer instead of making $100 million in profits may only make $99,990,000, this is a lesser evil than the alternative. Now that we as a society are going the other way and are trying to eliminate frivolity even at the price of losing more legal remedies, the middle class is also disappearing and losing its powers. Americans, please wake up and read history again!