"We cannot use force."
That was my response last week when a lawyer shouted at me, "You media types are bullies, too!"
We were arguing about my Wall Street Journal op-ed that called class-action and securities lawyers bullies and parasites who enrich themselves through extortion. It’s legal extortion, but extortion nonetheless (http://tinyurl.com/5dz8b9).
These aggressive lawyers and their Naderite defenders don’t get it. Or they pretend they don’t.
There are only two ways to do things in life: voluntarily or forced. We reporters may be obnoxious, intrusive, stupid, rude, etc., but we cannot force anyone to do anything. All our work is in the voluntary sector.
But litigation is force. When a plaintiff sues, a defendant is forced to mount a defense. If he settles or loses, he’s forced to pay. Government is the enforcer.
Sometimes we need force — including the force behind the litigators — to protect our freedoms, just as we may need missiles. But we try not to use our missiles because we understand that they do tremendous collateral damage. But litigation does collateral damage, too. The millions spent on legal defense can’t be used to make life-enhancing — and life-saving — products.
We ought to avoid using lawyers the way we avoid firing missiles.
But we don’t. State attorneys general even hire them to pursue unpopular businesses, like gun makers. When the lawyers make a killing in the name of "protecting the people," they give a piece of that money to the attorney general’s political campaign. Somehow that is not considered a scandal.
The businesses that pay may have done nothing wrong. Once an attorney has rounded up lots of complainants, it’s not hard to terrorize companies into settling. They could fight and maybe win, but that distracts managers from what they ought to be doing. And they might get a bad jury and lose the entire company. It’s safer to settle.
Our legal system invites lawyers to act like bullies. Only in America can I sue you for dubious reasons, force you to spend thousands of dollars on lawyers (not to mention the psychic costs — the anxiety and lost sleep that lawsuits create), and when a judge rules that my claim is bunk, I don’t even have to say "sorry." I can blithely move on to sue someone else. In other countries, I would have to pay your legal fees to at least compensate you for some of the financial damage I caused. "Loser pays," it’s called.
The trial lawyers have even gamed the language. They call "loser pays" the "English Rule," as if it’s some weird British law. But it’s not. It’s really the Rest of the World Rule. America is the odd man out because we rarely punish litigators who misuse force.
Litigators fight for a living, day after day. Practice makes perfect. They get good at winning. Because of their clout, "loser pays" never gets though the legislature.
So the lawyers go on bullying. After Friday’s "20/20" piece on lawyer bullies, (http://tinyurl.com/5unj9a), viewers sent comments like this one:
"After a real estate deal fell through, the owner of the property, a lawyer, sued me for $25,000 in damages. After two years, I won a summary judgment, which he immediately appealed. We are still in litigation over this, and there is nothing I can do to stop the process. I have offered settlements all along the way, but at this point I have paid more for my mandatory defense than the entire case was worth. If that’s not bullying, I don’t know what is. He continues to do everything in his power to prolong the case, knowing full well what it is costing me. By the time this is all over and I ‘win,’ I will have spent $35,000 and dealt with the stress of the case for more than five years. We are a modest, middle-class family. What was once the hope of being able to pay for my children’s college education now lines a lawyer’s pockets. I have had no recourse but to take it."
America needs judges willing to say no to the lawyer bullies. America also needs "loser pays." Otherwise, the parasites will bully away your money and your choices.
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