Case Dismissed

Lawyers are like the Untouchables of the Indian caste system–handling the tasks that are too messy for others to go near. We deal with other peoples’ money, fight their fights, and manage the negotiation of ugly little details that people don’t want to admit actually matter. We have been known to defend the indefensible, and to file lawsuits that will not make the world a better place. We sometimes sow discord. When parties sit down to hammer out a deal, we focus on the hard issues, confronting points that have been brushed aside to preserve the illusion of backslapping bonhomie among the players. We argue over commas. And let’s not even talk about fees! When you’re on the way up, we make our nickel papering your mergers and acquisitions. When you’re going bust, we’re happy to handle the bankruptcy work. And in the end, if it all goes badly–we just move on to the next file.

If you, like Court TV’s Catherine Crier, find this to be a highly regrettable state of affairs, here’s some advice: Get real. Lawyers are professionals–like doctors, accountants, and teachers. As with other professions, law requires the talents of bright, hard-working people who can handle really awful situations with some detachment. It’s demanding work and often not a lot of fun. To be any good at it, you have to be aggressive, thick-skinned, and none too squeamish. That’s a good thing, by the way. You don’t want a lawyer who is repelled by ugly facts any more than you want a doctor who will go to pieces every time you show up with a scratch.

These sound like pretty obvious points, don’t they? But for some reason they present a real struggle for Ms. Crier. Crier, who was a prosecutor and a judge before she burst onto the small screen, decries a world in which lawyers are not nearly enough like the role models who drew her to the profession in the first place–Atticus Finch (as played by Gregory Peck) and Clarence Darrow (as played by Spencer Tracy).

The problem, Ms. Crier tells us, is that today’s lawyers don’t fight for truth, justice, and the American way. Rather, they have wrought the law into an instrument of “tyranny.” Tyranny, by the way, is also referred to as the “omnipotence of the rule of law,” which–despite what you may have heard elsewhere–is not actually a good thing. This is because lawyers push Congress to pass wrong-headed laws, and push the courts to “legislate from the bench.” Through their pushing, they have created a rule-obsessed, over-regulated, risk-averse, blame-mongering culture. You can hardly venture out of doors any more because of those damnable lawyers! For fear of being sued, nobody will rent Crier horses for her ranch. School recess is “rapidly disappearing.” And the days have all but passed since Halloween was a “joyous, mischievous romp through darkened neighborhoods.” “The lawyers” (as Crier refers to the entire profession, suggesting a colony of insects controlled by some malevolent overmind) are going to strangle the life out of this country. “Reliance on endless rules,” Crier warns primly, “proved disastrous in the former Soviet Union.”

Well, if you believe The Case Against Lawyers, that may be where we’re headed. But I don’t buy it. For one thing, Crier’s facts just don’t match up to reality. When I want to ride a horse (which, OK, is never), I can head down to the stables at D.C.’s Rock Creek Park and saddle up. My children report to me that recess is a thriving institution in our local schools. And I can confirm that come Halloween, the kids still show up in droves. Is our national predilection for lawsuits responsible for some perverse economic effects, some unintended consequences, some downright silliness? Yes. Some products and services no doubt have disappeared because of the costs and inefficiencies imposed by our personal-injury jurisprudence. And there’s a cringe factor as well: Like Crier, I confess to being amazed that product labels remind us to do things such as remove your clothes before ironing them. But come on: In recent years, hasn’t the “overlawyered” U.S. economy rather dramatically outperformed “underlawyered” economies like Japan’s, notwithstanding gaps in corporate governance that contributed to Enron, WorldCom, and similar scandals? And the threat of litigation has hardly scared American manufacturers from pumping plenty of useful, if sometimes dangerous, pro-ducts into the stream of commerce every day–at affordable prices! If you don’t believe me, check out your neighborhood hardware store.

That said, there are some things that people should be scared of, and here the threat of litigation can be quite helpful. Crier unintentionally provides an example. In an effort to illustrate how skittish lawyers have made us, she recounts an outing at her local golf club, where she and her husband, Christopher, found themselves boxed in by a clubmate’s idling car. Christopher decided to move the car himself, when they discovered the owner’s child in the backseat. Writes Crier: “We both laughed but simultaneously called out to another foursome . . . We’re not kidnapping anyone . . . just moving the car.'”

Ha ha ha. Here’s the thing: If Christopher did that with my car, I’d be really annoyed. If he did that and backed into, say, a water hazard, I might be annoyed enough to sue him. And if he did that and accidentally hurt my kid in the process . . . why, I’d be so annoyed that I might try to sue him for everything he had. The money might not make up for my kid’s suffering, or my emotional pain, but it sure would be nice to know that the next person in Christopher’s position would have reason to be more careful.

To be sure, the usefulness of punitive damages in a situation like the one I just described is something that reasonable people could disagree about, but it’s something that needs to be discussed. Regrettably, this is a book that consistently comes up short on serious discussion. To give Crier her due, she identifies some interesting issues, and does so with an ideological evenhandedness that is both unusual and admirable. Some of her targets–campaign finance, special education, and prison overcrowding–will be familiar to readers of The Washington Monthly. Other topics–such as her soaring contempt for much of the regulatory state–will play more to the Cato Institute crowd. But even though you’re bound to agree with her on some points, it’s awfully hard to join her in the sentiment–at once too broad, too vague, and too extreme–that she has located a “shift away from reason and judgment, encouraged by lawyers, politicians, and the media, [that] makes me fear for our system of government.” And without that narrative conceit, I defy anybody on the left, right, or center to find a cogent idea that knits this book together. Crier comes on strong but does not persuade. Next time she wants to argue a case, she should talk to a lawyer.