Excerpt from The Litigation Explosion

By Walter K. Olson

Medical Economics, September 16, 1991

[second of two parts] [to first part]

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Enter the "experts"

Until fairly recently, formal legal rules had tended to keep the need for experts to a minimum by side-stepping the knottiest factual inquiries and hinging entitlements on factors relatively easy to ascertain. But then came a pernicious trend toward a thoroughgoing effort to consider the totality of each litigant's circumstances. This calls for a ton of factual input, not all of which lay persons can readily provide.

Lawsuits charging that a product was defective, for example, used to be handled by asking the sorts of simple questions courts could resolve without specialized help: Was the product delivered in its intended form? Where had the two sides agreed the risk of accident should fall? Now the prevailing "risk-utility test" calls on the jury to carry on a global cost-benefit balancing of all the pluses and minuses of the company's decision to put a given product on the market. Trials soon demanded a traveling caravan of engineers, statisticians, consumer psychologists, economists, and more.

As experts piled and tumbled into the courtrooms in such disconcerting numbers, some rational way might have been found to elicit their massed opinions. One old idea is to combine the experts with the judges or juries by assigning tariff, patent, and suchlike recondite matters to special courts or boards, or empaneling a body of merchants or doctors to decide whether one of their peers had breached a professional standard of competence or ethics. More practical for the run of ordinary lawsuits, in which a new kind of expertise is needed every day, is for the judge to pick an outside expert or a panel of experts to testify on a technical matter, as is commonly done in European courts.

Visiting European lawyers are often dumbfounded to learn that in this country most experts are recruited, sent into courtroom battle, and paid by th contending litigants themselves. Credentials are nice, but partisan reliability usually has to come first. "I would go into a lawsuit with an objective, uncommitted, independent expert about as willingly as I would occupy a foxhole with a couple of noncombatant soldiers," former American Bar Association President John Shepherd has said. Frequently the lawyer writes the testimony for the expert to deliver on the stand.

This elite technical corps in the ranks of the partisan armies, like some other high-tech military establishments, does not come cheap. Medical experts are reported to charge around $ 15,000 to $ 20,000 a case for malpractice testimony. A leading witness who testifies for plaintiffs in pollution-illness suits has reportedly charged a flat $ 20,000 per complainant, and the number of complainants in those cases can run into the dozens or hundreds.

Mainstream scientists who venture into the courtroom often come away disgusted and unwilling to return. Some are put off by cross-examinations that strike them as aimed more at making them look foolish than at engaging the issues. Others lack the stage presence and knack for simplicity needed in a good witness; more than one genuinely eminent physician or engineer has blown a client's case by seeming like a know-it-all or drawing so many careful distinctions that the jury's eyes glazed over.

The expert who does enjoy the courtroom and scores a few victories is likely to be asked back again, picking up what you might call frequent-testifier bonus points. The Association of Trial Lawyers of America's ATLA Law Reporter, which keeps injury lawyers apprised of major new victories, lists the name not only of winning lawyers but also of winning experts, who get new business that way. Hence the rise of the professional witness who works closely with lawyers and knows what they want. Some travel around the country and have testified at more than a thousand trials. "An expert can be found to testify to the truth of almost any factual theory, no matter how frivolous," notes federal Judge Jack Weinstein.

Of course, opponents counter the more eccentric claims by calling their own scientists to give the mainstream side of the story-leading to the "battle of the experts." All too often the bewildered jury concludes that even the pros can't agree on the science and proceeds to decide the case on sympathetic or other grounds.

Why countersuits fail

Leona Serafin had come into Detroit's Outer Drive Hospital for what was supposed to be a routine kidney-stone removal. Instead, uncontrollable hemorrhaging set in on the operating table and she died a few days later. An autopsy found the cause of death to be thrombotic-thrombocytopenic purpura, a rare and nearly always fatal blood disorder whose origin is unknown.

Two years passed, and a pair of lawyers representing the Serafin family filed malpractice suits against the hospital and three doctors. After another three years the case went to trial in Wayne County circuit court. The lawyers could not offer testimony that the doctors or hospital had fallen short of any accepted standards in recommending or conducting the surgery. Upon hearing their case the judge promptly ordered a verdict for the defense. There was an appeal, but without success, and the Michigan Supreme Court denied review.

Defendants in a case like this are supposed to go back to practicing medicine and try to forget what happened to them. One of them, Dr. Seymour Friedman, couldn't forget. He filed a lawsuit against the two attorneys, who he said had good reason to know their action was groundless. Because of it, he said, he had been put to direct expense: He would have to pay higher insurance rates for as long as he practiced; he had lost two young associates who could not afford to pay the higher liability premiums being charged to his office; his professional reputation had been defamed; and he had been put through intense personal embarrassment and anguish.

The Supreme Court of Michigan declared that the doors of the state's courts would be locked against him. It said Friedman could not get anywhere even if he could not get anywhere even if he could prove the lawyers knew the claim was false: The authoritative Second Restatement of Torts explains that a lawyer can't be sued for malicious prosecution even if he "has no probable cause and is convinced that his client's claim is unfounded," so long as "he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim." That these lawyers were alleged to be angling for a settlement, not an adjudication, part of which would go to them on contingency, did not seem to matter. The majority's 33-page opinion could not agree on reasoning-in fact it was split four ways-but it all came down to one sweeping assertion: A lawyer has no "duty of care" to avoid hurting the person he litigates against.

With rare exceptions, other doctors who have tried to fight back against groundless malpractice suits have learned the same lesson. Some sought relief under defamation law, taking hope from cases in which employees successfully sued former employers for giving them bad references. They were thrown out of court. Others argued it was high time lawyers acknowledged a duty not to inflict easily foreseen harm on named, known opponents. That didn't work either.

An Illinois doctor invoked a clause in the state's constitution instructing its courts to provide a remedy for every wrong. He was told that the wrong done by litigation would just have to remain an exception. Allowing redress to the targets of wrongful lawsuits, he was told, might deter someone somewhere from launching a rightful lawsuit. The state's high-minded policy was to encourage the universal seeking of redress, and so the seeking of redress would just have to be forbidden to him.

There is some hope in a relatively recent reform called Rule 11. In brief, the rule requires that a suit be well-grounded in fact and law. This means an attorney must not ignore readily available proof that his suit is unfounded. Unfortunately, many states have not adopted versions of Rule 11 at all, or enforce it only with great laxity, making it hard to get relief for misconduct in litigation however egregious. And of course trial lawyers are trying hard to get the rule drastically weakened.

Taming the monster

Civil law, when it works well, can protect us from many, if hardly all, of the wrongs done to us in the outside world. It should also protect us from the wrongs that can be done in the courtroom itself: false accusation and false resistance to just legal claims. Fee shifting--forcing the losing side to pay for the opponent's legal expenses--is the ultimate answer to the problem of hit-and-run accusation. But a truly humane legal system could go further to avoid what might be called the vice of oversensitivity. The most useful burglar alarms aren't those that go off at the smallest vibrations; the law might well seek to absorb rather than transmit some of the inevitable shocks and stresses of living in a world full of other people.

One familiar way the law can install padding around its coercive machinery is by heightening its standard of proof. The customary standard for proving a civil case is a mere "preponderance of the evidence," or 50 percent plus a smidgen. Imposing a tougher standard across the board is unrealistic, but it can be done for specific types of cases. Michigan, for example, citing the need to keep children from being put through needless court fights, has provided that whoever wishes to reopen a settled custody case must prove by clear and convincing evidence that the child would benefit. Many states have raised the standard of proof in punitive claims, and at least one, Colorado, has set it where it belongs; at "beyond a reasonable doubt," the standard of criminal law.

A disinterested prosecutor sworn to public norms, not a contingency-fee lawyer, should be the one to press punitive charges. And complaints that don't specifically inform the defendant of the charges from the start should be out of bounds.

America is the litigious society it is because our lawyers wield unparalleled powers of imposition. No other country gives a private lawyer such a free hand to select a victim, tie him up in court on undefined charges, force him to hire lawyers of his town at dire expense, trash his privacy through discovery, wear him down on the perpetual-motions treadmill, libel him grossly in documents that become permanent public records, and keep him scrambling to respond to self-anointed experts. Other countries let lawyers or litigants do some of these things, but never with such utter impunity.

No great abuse was ever ended without a struggle. The industry that has sprung up around contention and accusation is powerful. It will not lightly give up its control of the machinery of judicial compulsion. As individuals and as members of larger associations, we are most of us terribly vulnerable to the perils of litigation. Yet as a society, we're in no sense helpless to move against its evils. All it takes is will. The will may not be here yet, but it is coming. When it arrives, we will again make litigation an exception, a last resort, a necessary evil at the margins of common life.

[End of second part] [First part of article]

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THE AUTHOR is a senior fellow at the Manhattan Institute, a public policy research organization in New York City. This article is excerpted from his book, The Litigation Explosion, published by Truman Talley Books-Dutton, a division of Penguin Books USA Inc. Copyright Walter K. Olson, 1991.

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