President's Perspective

Civil Justice - Exploding the Myths

By David A. Saichek

Wisconsin lawyers can be proud of U.W. Law School Professor Marc Galanter. He employs solid research to combat ignorance and destroy myths. He identifies propaganda leveled at the American system of justice, investigates its origins and conducts well-regarded research to find out if the assertions are true or false. ¹

• Litigation is undermining our ability to compete economically. False
  
  
• Juries routinely award large punitive damages. False
  
  
• Runaway juries make capricious awards to undeserving claimants. False
  
  
• America is the most litigious society in history. False
  
  
• The courts are filled with frivolous lawsuits. False

Other myths exploded by Prof. Galanter:

• America has 70 percent of the world's lawyers. False
  
  
• The legal system costs Americans 300 billion dollars a year. False
  
  
• Products liability has expanded into a self-inflicted competitive disadvantage and overloads our justice system (and causes measles). False

Americans certainly do use their courthouses. That is due to our nation's history and our firm emphasis on individual rights and liberties, as well as our respect for a system of laws. ²

Galanter states that "Public discussion of our civil justice system resounds with a litany of quarter-truths." ³ We hear about a "litigation explosion" which, if present at all, certainly is not due to tort litigation. In 1994 products liability suits as a percentage of the federal civil caseload was 9.42 percent. The increase in products litigation in the 1980s was largely accounted for by suits involving asbestos. Except for asbestos cases, products liability filings in federal courts declined dramatically during the 1980s. ⁴ Appreciable caseload increases are really attributable to criminal cases in state and federal courts, plus domestic relations and juvenile caseloads in state courts. Since 1984 criminal filings have increased 35 percent in state courts and 28 percent in federal courts. In state courts juvenile caseloads rose 59 percent and domestic relations cases rose 65 percent between 1984 and 1994. Although our courts need more resources to handle increased demands, as a nation we continue to commit less than 1 percent of our total annual combined federal, state and local government spending to judicial and legal services. ⁵

Seventy-eight percent of state court caseloads are comprised of criminal, traffic, juvenile and other matters. Only 22 percent are civil (other than traffic). Of that 22 percent, one quarter are domestic relations, and most of the balance are disputes over money. Only 6.2 percent of civil cases are in the tort category. Congress and the state legislatures annually enact more comprehensive and intrusive laws. Then almost every segment of American opinion blames lawyers for the resulting litigation. Lawyer-novelist Richard Dooling says this is "... like starting a war and then blaming the casualties on the growing number of morticians." ⁶

Dooling points out that in the first 70 years of this century Congress enacted 25 laws regulating employment. Then between 1970 and 1993 it passed 72 more laws, including indecipherable tomes such as ERISA, OSHA and ADA. New and hopefully better laws have been passed governing the environment and health care. So is it any surprise that litigation has "exploded" in the areas of discrimination, employment, environmental cleanup and health care? We all hope these laws will curtail corporate abuses and confer rights upon under-protected citizens. But it should come as no surprise that new and complex laws spawn litigation.

Why does the public (and even some lawyers) lap up viciously invented lies? Why does corporate America spend (fraudulently) their shareholders' dollars on poisoning the pool of jurors? Prof. Galanter puts the answer discreetly:

"Increasingly, ordinary people can use this system to hold to account the managers and authorities of society. This is what fuels the sense of outrage of so many well-placed critics because it challenges the leeways and immunities enjoyed by those in charge." ⁷

May I translate that into my less elegant style of expression? Rich and powerful people want more money and more power. They resent governmental regulations brought about by their own abuses and avarice. They detest lawyers who help ordinary people stand up for their common law and statutory rights.

Can we change the powerful and greedy? Probably not. But we can recognize and support the efforts of law schools and other institutions that evince a genuine concern for the truth. We can, as Prof. Galanter puts it, "... contribute to a cumulative and reliable body of knowledge about the system." We can recognize that civil justice issues involve both value judgments and political choices. Unbiased research resulting in an increased knowledge base can, as suggested by Prof. Galanter, rescue us from a debate dominated by illusory issues and demonstrably false "facts."

Endnotes

¹ See generally, Marc Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. Rev. 4 (1983); Marc Galanter, The Day After the Litigation Explosion, 46 Md. L. Rev. 3 (1986); Marc Galanter, The Life and Times of the Big Six: Or, The Federal Courts Since the Good Old Days, Wis. L. Rev. 921 (1988); Marc Galanter, Lawyers in the Mist: The Golden Age of Legal Nostalgia, 100 Dick. L. Rev. 549 (1996); Marc Galanter, Predators and Parasites: Lawyer-bashing and Civil Justice, 28 Ga. L. Rev. 633 (1994); Marc Galanter, News from Nowhere: The Debased Debate on Civil Justice, 71 Denv. U.L. Rev. 77 (1993); Marc Galanter, Case Congregations and Their Careers, 24 Law & Soc'y Rev. 371 (1990); Marc Galanter & David Luban, Poetic Justice: Punitive Damages and Legal Pluralism, 42 Am. U.L. Rev. 1393 (1993); Marc Galanter, The Civil Jury as Regulator of the Litigation Process, U. Chi. Legal F. 201 (1990).

² Marc Galanter, "Pick a Number, Any Number," Legal Times, Feb. 17, 1992.

³ Marc Galanter, "Public View of Lawyers", Trial, April 1992, at 71.

⁴ Product Liability: Extent of "Litigation Explosion" in Federal Courts Questioned, GAO/HRD-88-36BR (1988).

⁵ Facts About the American Civil Justice System, American Bar Association, 1996, pp. 2, 3.

⁶ Richard Dooling, "Too Many Lawyers? Wait Until 2005," New York Times, Saturday, Feb. 22, 1997.

⁷ Galanter, "Public View of Lawyers," supra note 3, pg. 73.

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