The Costs of Lawyering

FOR Vice President Dan Quayle to deliver a law-reform speech at the American Bar Association convention in Atlanta last week was only slightly less nervy than Richard Nixon's braving the rock-throwing crowds of Caracas in 1958.The lawyers all but shouted "Yanqui, go home." But Quayle's message shouldn't be dismissed as simply more lawyer bashing. The backdrop for Quayle's speech was the widely documented litigation explosion in the United States in recent decades. This frenzy of filings (18 million new civil lawsuits a year) has clogged the nation's courts, added a liability premium to the costs of products and health care, and burdened the competitiveness of American business. The vice president, as chairman of the President's Council on Competitiveness, presented a thoughtful package of reforms to lower the costs of civil litigation. They range from capping punitive damages, to streamlining pretrial investigation ("discovery"), to restricting the latitude of expert witnesses. The most controversial proposal would try to deter long-shot lawsuits by requiring losing litigants in some types of suits to pay the winners' legal costs (in most US litigation now, each side pays its o wn lawyer fees). Consumer and civil rights activists (not to mention trial lawyers) counter that changes like fee-shifting would deter many meritorious as well as roll-the-dice suits, depriving wronged or injured people from their day in court. Big corporations would benefit from the changes more than the little guy, it's said. Many of the criticisms were anticipated by Quayle's group, however. Quayle noted that 70 percent of the world's lawyers live in the US, which has far more lawyers per capita than its competitors. So is the US an over-lawyered society? There's no objective answer; it's partly a matter of Americans' expectations and notions of rights. But rights carry costs. And Quayle has sensibly invited us to calculate those costs and their economic consequences.