Two recent books on the need - or lack thereof - for legal reform both deserve notice.
Distorting the Law: Politics, Media and the Litigation Crisis argues that a concerted effort by tort reform advocates has created a conventional cultural wisdom about tort litigation and the courts - but that this conventional wisdom is directly at odds with the facts. Although the empirical case it presents regarding the tort system is not entirely convincing, and it veers between advocacy and reportage, the book is nevertheless a worthwhile read.
Access to Justice takes on a broader question, relevant to many areas of law: Why is it so often the case that those who most need good attorneys, do not have access to them?
Distorting the Law Fails to Prove Its Point Empirically
The authors of Distorting the Law, Michael McCann and William Haltom, contend that, working from their cubicles at the Manhattan Institute and the U.S. Chamber of Commerce, hired gun missionaries of tort reform have unleashed "tort tales" -- unrepresentative, distorted or even mythical stories about lawsuits -- designed to make for easy digestion and dissemination by the popular media. But are the authors correct that these "tort tales" fail to reflect reality? That is a much harder question to answer.
The authors claim that the case against a litigation crisis -- when measured "by academic standards of rigor and exactitude" -- wins "hands down." But they also acknowledge that, at the end of the day, the social science data they highlight "yields few clear answers" and gives "little confidence" in the form of assertions as to what is really going on.
These two statements seem impossible to reconcile, and the contradiction is emblematic of a tension throughout this book: It is not sure whether it is an advocacy piece or a purely academic exposition. Unfortunately, there may be enough of each within it to discomfit readers from either camp.
The Real Problem with Empirical Study of the Law: The Pork Problem
My own view is the deep problem that besets empirical study in this area is what I call the pork problem: People decry the "free-spending Congress" but constituents tend to love their own Congresswoman -- and the bacon she delivers.
No one ever looks at a federally-funded project (be it a water treatment plant or an amusement park) in their town as a disgraceful and distortive earmark of federal funds that should be going to some other community based on some set of objective policy criteria. Rather, they celebrate that the federal government is finally directing some resources where they are really needed.
If only, they say, Washington had more folks like our representative. And of course, that is the problem: Washington has 536 such folks, who have all agreed to make each other look swell by handing out the pork.
Similarly, no one thinks their own litigation is frivolous. Nor does anyone believe that his own lawyer should be anything but a Rottweiler. Yet each is quick to stamp his feet in dismay when he sees others "abusing the system" by using an "ambulance chaser" to get an undeserved schmear for themselves.
As a result, though lots of polling data says we are overrun with frivolous lawsuits, if one looks hard enough at any particular lawsuit, he will virtually always come to appreciate the individual plaintiff's gripe. And the core issue in the debate over tort reform is not how many tort suits there are; it is how many meritless tort suits there are, that should not have been brought.
The Power Of "Tort Tales": The Availability Heuristic
The authors of Distorting the Law believe that the media has aided and abetted tort reformers in the campaign to ignore the facts, and to use caricature-like "tort tales" and pithy bromides to win over the hearts and minds of the American public.
This allegation has often been made. The difference here, however, is that the authors take pains to convincingly tie the efficacy of such tactics to the habits of the newsrooms. They (and their graduate students) are to be commended for undertaking an exhaustive empirical study of news reporting on the legal system.
The authors devote a chapter to contextualizing the famous McDonald's coffee lawsuit - in which spilled hot coffee was the basis of a large award. And they persuasively note how stories like this one have the "man bites dog" newsworthiness that makes it into the paper. Better yet, these stories turn a dry topic like tort reform into a bite-size morality play to which readers can relate.
Unfortunately, however, as the authors explain, when people can relate to a story, they tend to assume it is both correct and representative. (Put more formally, they indulge in what theorists Tversky and Kahnemann have dubbed the "availability heuristic"). As a result, if you only read articles about multi-million dollar plaintiffs' victories, you will assume they happen all the time. And these are the articles you will read - for these victories are the stories that will attract media interest.
In contrast, more low-key developments - suits that are dismissed for legal reasons, or based on weak facts - attract far less press. And when a settlement agreement contains confidentiality provisions - as most do - the parties are bound not to talk to the media.
(As a result of such settlements, the Distorting the Law authors contend, corporate malfeasance is hidden from the public eye. That's true to some degree, but my own experience has been that confidential settlement agreements hide at least as much frivolous litigation as well.)
Critiquing Lobbyists and Contributors - When They Are On the Other Side
To the extent that the book is an advocacy piece, it often applies a double standard. For example, it praises the "insider" strategy of the trial lawyers' bar in fighting the good fight against tort reform -- raising nary an eyebrow at the use of lobbyists and campaign contributions in aid of that effort. When the tables are turned, however, the authors ascribe a political victory by Big Tobacco to "contributions above and below the table." That's a serious charge - and one for which the authors offer no support.
The authors also claim objectivity, when they are clearly against reform that would limit tort plaintiffs' rights. They argue that academic commentators (and thus impliedly themselves) "are undeniably committed to norms of intellectual rigor and professional academic respectability." But that's not an argument, nor is it evidence - and the author's own comments belie their claimed objectivity. The days are long ago past when the ivory tower could credibly be painted in virginal white.
Helpful Background for Assessing CAFA and Possible Future Legislation
The book is particularly interesting to read in light of the passage this month of the Class Action Fairness Act, which is being heralded as a major victory for the proponents of tort reform. CAFA incorporates a number of modest procedural reforms in the settlement of class action lawsuits, and enacts what may be an enduringly important change in diverting from state to federal courts many high-dollar class action lawsuits.
CAFA is remarkable in that it is the first time that the trial lawyers' bar has been handed a defeat at the federal legislative level after a run of twenty-five years. Will CAFA come to be seen as a blip, or the thin edge of the wedge? That depends on who prevails in the contest the Distorting the Law authors describe - the one between trial lawyers pushing against "reform," and "tort tale" tellers pushing for it.
Access to Justice: A Call for More Lawyers for Those Who Most Need Them
If Distorting the Law is a mixture of advocacy and reportage, Deborah Rhode's Access to Justice is a pure piece of advocacy. Professor Rhode (who, interestingly, concedes that a frivolous litigation problem exists) argues that our problem is not too many lawyers but too few - and that those who exist are serving the wrong clients.
Professor Rhode makes a compelling case that those among us who most need access to legal services are the least likely to have access to them. I am sure she is right, but I can't say she proves it. There is much argument from anecdote, as well as some highly dubious use of statistics.
By way of example, Professor Rhode twice quotes the statistic that 90% of criminal cases are resolved through pleas to demonstrate the inadequacy of criminal defense for the poor. But it's not clear that plea rates, standing alone, are relevant to the issue of the quality of defense:
What really matters is not just the rate of pleas, but the rate of pleas by innocent persons and pleas to offenses that are arguably too severe to fit the facts. It also might be useful to compare plea rates for the counsel retained by those who can afford it, versus plea rates for the counsel appointed to serve those who cannot pay. But it's important to assess the plea in the context of the particular case, to see if it was a good or bad outcome for the client - and thus to see if the rich are truly receiving better results than the poor.
Unfortunately, Professor Rhode is prone to using "lawyer tales" in much the way that, according to Distorting the Law, "tort tales" are used by those pressing for tort reform: Presenting an anecdote and claiming it is representative, when it may not be.
For instance, in discussing the heavy caseloads of government-appointed lawyers, Rhode remarks that "in one all too typical example, a lawyer who agreed to handle a county's entire criminal caseload for $25,000 filed only three motions in five years." (Emphasis added). But more is needed if we are to be convinced that this shocking behavior is, indeed, typical. (Unless you read the book you will have to trust me that this anecdote actually is representative and I am not just indulging an "author tale".)
Perhaps Professor Rhode does not mean to suggest this behavior is literally typical - par for the course. But it would still be useful to know what kind of work the truly typical court-appointed lawyer is, or is not, able to do.
Rhode's Prescription: How to Make Sure the Poor Have Better Access to Good Lawyers
Professor Rhode argues that, as it is, the legal profession not only overpays itself, but also gives only lip service to its more publicly-minded obligations. The heart of the book is prescriptive - setting out an agenda for addressing the inadequacies of legal representation for those who are not well-to-do in both the civil and criminal contexts.
On the civil side, much of the solution is to be found, argues Professor Rhode, in loosening the monopolistic cartel that the bar holds on the practice of law. What poor Americans need, she suggests is something like a European notare (not to be confused with our notary publics, otherwise known as "people with a stamp") who would be competent to navigate the bureaucratic systems within which the needs of the poor are addressed.
Consideration of this proposal invites consideration of the origins of the legal monopoly in this country. Now, the history of the American Bar Association will tell you that licensure was needed to establish a floor of competency so that the public would be protected from a two-tier legal system - with good lawyers for the rich, and bad ones for the poor. In contrast, the realists paint a picture of cartelization, pure and simple.
Without trying to settle this score, I can say the Professor Rhode makes a persuasive case that at this point, the floor is set so high that most of America faces a no-tier system of legal representation: They are priced out of hiring any lawyer at all, good, bad, or mediocre.
On the criminal side, the answer Rhode offers for the insufficient numbers of, and resources for, appointed defense is that more money should be spent. She suggests the extra revenue could come either from general tax revenues or from a surcharge on legal services (or from law professor salaries, or from an excise tax on law school endowments, one supposes).
It was remarkable and commendable that President Bush made significant mention of the need for reform in the area of legal representation for the poor during his State of the Union address. He is right, and so is Professor Rhode.
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