Just a little less litigation, please

The way Phillip Howard sees it, his profession is helping to ruin America.

Mr. Howard, an attorney, railed against trivial lawsuits and too much regulation in two 1990s bestsellers. Now, he's lining up some surprising political bedfellows to convince Americans that fear of litigation hurts their everyday lives.

Such political opposites as former Speaker of the House Newt Gingrich and Gov. George McGovern have signed on to the board of his new organization, Common Good. Its task is nothing less than transforming the nation's attitude toward law. "It's a very ambitious goal," admits Howard.

As a modest first step, Common Good commissioned the first in a series of polls that detail litigations' impact on key institutions including hospitals, schools, and government. The first survey of doctors earlier this year found a majority said a fear of suits leads them to order more tests than required or make unnecessary referrals to specialists.

"People spend the day looking over their shoulder instead of getting the job done," Howard says. "The point of law is not only to provide a vehicle to attack, but to protect people who are doing what's reasonable."

Howard proposes creating separate medical courts as one possible solution. Expert judges, rather than juries, would review doctors' decisions. Howard also hopes to spark discussion about how education and the civil service system are affected by lawsuits.

Howard and his board of politicians and academics insist they aren't looking to eliminate suits against corporations. They don't like the label "tort reform." And they don't necessarily just blame trial plaintiff lawyers for the mess.

Aggressive defense by companies and their insurers worsens the adversarial culture, says Common Good board member Jeffrey O'Connell, a law professor at the University of Virginia. "Anyone who doesn't recognize the abuses on both sides is unrealistic."

Mr. O'Connell, who helped think up no-fault auto insurance decades ago as a way to avoid lawsuits, says Common Good could help spur similar alternatives in other fields of law.

For now, the group will focus on raising public awareness. "People have to think about it and understand their welfare is being affected," says board member and former New Jersey Gov. Tom Kane, who serves as president of Drew University in Madison, N.J.

Trial lawyers are wary of the organization's motives. "There's clearly an agenda to provide corporate welfare at the expense of injured consumers and workers," says Carleton Carl of the American Trial Lawyers Association.

As a partner at a major New York law firm, Howard admits he's not a natural symbol for reform. He says the changes he advocates would mean less business for his firm, yet partners seem supportive. Two, who served in President Clinton's Justice Department, are on the advisory board. "If we make the law better, everyone will be better off," Howard says.

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