US Lawyers and The Litigation Flood
THE LITIGATION EXPLOSION: WHAT HAPPENED WHEN AMERICA UNLEASHED THE LAWSUIT. By Walter K. Olson, Dutton, 388 pp., $24.95
WALTER K. OLSON has taken on the role of advocate in his book ``The Litigation Explosion'' - advocate for legal reform. Writing as a ``nonlawyer'' for a nonlawyer audience, Olson examines the changes in the legal system that began in the 1930s and analyzes their effects on civil law.
The results have been devastating. ``The unleashing of litigation in its full fury has done cruel, grave harm and little lasting good. It has helped to sunder some of the most sensitive and profound relationships of human life. ... It clogs and jams the gears of commerce. ... It torments the provably innocent and rewards the palpably irresponsible. It devours hard-won savings and worsens every animosity of a diverse society.''
Despite the grim picture he draws of the current situation, he argues that the problems can be corrected and, in some cases, have already been addressed.
Essentially he argues that the traditional rules governing the practice of law, civil procedure, and the writing of laws discouraged frivolous and harmful litigation. His approach, while persuasive on many counts, is somewhat simplistic. He fails to explore thoughtfully the reasons for abandoning legal formalism and does not consider carefully the injustices that existed under the earlier system.
Olson places much of the blame for the current crisis on the ``Legal Realists'' - Roscoe Pound and Jerome Frank of Harvard, Charles Clark of Yale, Karl Llewellyn of Columbia - who ``launched a devastating attack on the effort to maintain clear, knowable-in-advance legal rules.'' The rules, they concluded, were not valid because they were not applied objectively.
The changes instituted by the Realists had far-reaching effects. Under the new system, suits were initiated by ``notice'' pleadings that served only to put the parties on notice that they were being sued and stated the general subject matter of the dispute. Opponents of this reform recognized that such minimal requirements would encourage frivolous suits.
Easing of ethical standards for lawyers has encouraged litigation. Lawyers, Olson notes, have been allowed to create a market for their services through advertising. Unlike their European counterparts, American attorneys may accept payment in the form of a contingency fee, a policy that makes legal action ``affordable'' to virtually everyone in the society but also gives lawyers a personal interest in the handling and outcome of a case. This may, he explains, work against the interests of the client who desires only to have a conflict resolved but whose lawyer pushes for higher stakes in order to reap greater financial reward.
Quality of legislation, Olson contends, is also a matter of concern. A growing tendency among both federal and state lawmakers to rely on broad language leads to uncertainty as to the meaning and application of statutes.
Court rulings have created similar problems. Judges have adopted vague guidelines intended to afford flexibility that lead to inconsistency in rulings and lengthy court battles. Olson describes the effects of a 1980 ruling that ``the best interests of the child'' should be the standard in custody cases. This formula, he states, has ``three interlocking features'': (1) it provides ``hair-trigger litigability,'' (2) it lends itself to excessive subjectivity, and (3) it renders every piece of information a bout one or other of the parents relevant. Litigation resulting from application of this standard, he concludes, is often detrimental to the child and costly to the parents in terms of privacy, future relations, and fees.
Olson is skillful in distilling the legal arguments and explaining both the ideas and their significance to his audience. Although not entirely successful in making his argument for return to traditional rules, Olson does explore the problems in the current system in an intelligent, provocative manner.