An examination of what is wrong with the American legal system and what can be done about it. [Dir: Roger Goodman/ Journalist: John Stossel/ 45 min/ Documentary-Educational/ Law & the Individual, John Stossel]
One of the most important underpinnings of a free society is a well-functioning legal framework, i.e., a body of law that facilitates the enforcement of property rights and contracts, protects individuals against the aggression of others, and is accessible to all. However, as ABC’s John Stossel shows in this remarkable film, in the U.S. that framework is becoming increasingly expensive and misused, destroying the lives of ordinary people and impoverishing everyone touched by it.
Of course, the direct costs of law are enormous. Trial lawyers may make millions from a single case, and often these costs are passed on to the consumer in the form of higher prices. For instance, according to Stossel, litigation adds five hundred dollars to the price of a new car and one hundred dollars to the price of a football helmet.
But it’s the indirect costs of excessive litigation that are the real drain. Lawsuits drive off the market good products, like vaccines. The risk of being sued for supposed vaccine side effects (which will generally occur among a very small number of people with any vaccine) has reduced the number of vaccine producers from twenty to just four.
At the same time, because of the cost of defending against lawsuits, lawyers themselves have become, in a sense, above the law. Stossel shows a particularly notorious example of this—a lawyer who has terrorized her neighborhood with more than forty lawsuits. These suits were for things like falling down, bumping her foot against a door, and irritation from the noise of children playing basketball. Ordinary people don’t have the money to fight such lawsuits so they often settle. Of course, hate is only a few steps behind fear, so it’s no wonder that many people detest lawyers.
The solution, according to Stossel, is “loser pays all,” that is, a rule that requires the losing litigant in a case to pay all the fees and costs. As Stossel explains, currently the attacking litigant may win, maybe even win big. But the defending litigant can only lose, since even if found innocent, the defending litigant must spend thousands or millions in litigation, money that is never recovered. That imbalance creates an incentive for attacking litigants to be very aggressive and to name defendants who are entirely blameless on the hopes that they will settle for less than it would cost for them to defend themselves. “Loser pays all” corrects that imbalance by protecting the innocent defendant against the cost of defense. In turn, it makes plaintiffs consider more carefully the real merits of their case and so reduces frivolous litigation. Apparently, the U.S. legal system is one of the few in the advanced world that doesn’t have this rule.
As usual, Stossel has built his argument with great care, offering numerous examples to support it and one by one considering and countering the responses of his opponents. Unlike so many other journalists, he has a unique ability to go to the heart of a matter and to bring it to light. That’s just what he has done here. This is a must-see for anyone concerned about the demise of American justice. One small qualification on all this, however: it would be well to remember that for every lawyer behaving badly, there is another, often heroic lawyer, opposing them. The real “trouble with lawyers” is the trouble with bad law.