Litigation Explosion*

Genrich L. Krasko


While writing this essay I came across a book, The Litigation Explosion: What Happened When America Unleashed the Lawsuit, by Walter K. Olson, published in 1991. The book reads like an adventure tale. Here is the story.

 Until the mid-’60s, the widely accepted attitude of both the general public and the American Bar Association toward lawsuits was that they should be the last resort in solving legal problems. The American Bar Association’s “moral code” in fact was as powerful in regulating the professional behavior of lawyers as the Hippocratic oath was for the medical profession. In its ethical canon number 28, it explicitly disapproved “stirring up litigation.” The code also absolutely prohibited using two important tools of any commercial enterprise: general advertising and solicitation of legal services.

With the will for money – greed – gradually becoming the main objective of life, the ethical dams of the law profession began to collapse. This is how it happened.

By the 1970s the climate in the law schools had turned around on the subject of litigation, first to ostensible neutrality and then to admiring support. One oft-cited article on legal ethics struck a typical note when it assailed as “distinctly medieval” the view that litigation is “at best a necessary evil” and litigiousness is vice. Lawsuits increasingly came to be described, as litigious persons themselves describe them, an assertion of rights . . . . The process culminated in 1977 with a five-to-four decision of the U.S. Supreme Court officially endorsing the new idea that a lawsuit was no longer to be considered an evil.  (Litigation Explosion, p. 4.)

 The advertising dam was the first to crumble. That 1977 Supreme Court decision declared that the First Amendment protects advertising of lawyers’ services as commercial speech. The impact was unbelievable:


Overnight, the most drastic sort of change came over America’s legal profession. On June 26, 1977, in every state of the union, lawyer advertising was kept under close wraps if not banned altogether. On June 27, from Kiska to Key West, no combination of public discomfort and peer opposition could stop it. Because lawyers’ newly discovered right to advertise was found to be lodged in the Constitution, it could not practically be revised (short of a change of a heart of Court) no matter what lessons experience might turn out to hold. (ibid, p. 21.)


However, if advertising to a million readers (or watchers) is all right, why not to just one? Why should not the solicitation of a lawyer’s services to a certain person be allowed? Fair enough. And the 1978 Supreme Court decision that followed ruled that “solicitation with a primarily ‘political or ideological’ motive could not be banned” (ibid, p. 24). Thus the last dam had disintegrated. The American Bar Association’s resistance, no matter how strong it had been at the beginning, could not withstand the pressure of overflowing greed. The litigation industry had been born.

It is a fundamental fact of economics that a business is doomed unless its technology is state-of-the-art. Litigation technologies are extremely sophisticated and are constantly improving. Among them is “ambulance chasing,” when lawyers penetrate emergency rooms, wards, and intensive care units—sometimes even disguised as electricians or plumbers—in order to seduce a new client to litigation, or scanning public hospital records for potential cases of malpractice suits, to say nothing of sophisticated psychological methods used to antagonize parties in divorce or property conflicts, thus expanding opportunities for litigation.

But the most ingenious and most successful technology of the litigation industry is the so-called contingency fee device: “No Fee Unless Successful.”  If the lawyer is successful, the fee is typically 30% of the client’s winnings. The corruptive effect of this practice on American society simply cannot be overestimated. And we are, again, in complete isolation from the civilized democratic world.

 The tradition of the English common law, the French and German civil law, and the Roman law all agree that it is unethical for lawyers to accept contingency fees. In 1975 British judges strenuously opposed even a closely regulated version of the fee, in which a contingency suit could go forward so long as leading lawyers verified its reasonableness. They explained that lawyers would no longer make their cases “with scrupulous fairness and integrity.” (ibid, p. 37.)

 Lawyers are probably the most hated profession in America. Numerous jokes are circulated and eagerly repeated again and again about lawyers and their greed, ruthlessness, and the way they should be treated (ruthlessly). But how many people would throw a lawyer down the stairs (or in a less violent scenario—would hang up on him) when he suggests suing someone for a large amount of money— and with no effort or responsibility on one’s part? **

Not only does the litigation industry in America corrupt both our people and our social institutions, it costs us, the people, billions of dollars. Widespread insurance fraud instigated by lawyers and epidemics of malpractice suits against our healthcare providers trickle down to the working Americans’ bills.

The most disgusting – and the most morally incredible – practice is the lawyers’ assault on those who care for our health. So often  doctors or a nurses spend sleepless nights at a patient’s bedside, sacrificing their own families, and even their own health, only to be sued by irresponsible greedy lawyers—for it is the lawyers, not the alleged victims of the alleged malpractice who are the real litigators. No wonder medical doctors have to pay a good chunk of their income for malpractice insurance—the expense that then trickles down to increased medical insurance costs. And not only that, the whole strategy of medical treatment is now built on measures preventing a possible malpractice suit, such as unnecessary tests or second opinion consultations, rather than on true medical necessity.

Of course, this flourishing business of robbing innocent people of their money, health and dignity would never exist were the power of money not so strong in our society today. Although it would be utopian and unrealistic to hope that every person who finds a wallet would always contact its owner or bring the wallet to a nearby police station, many Americans do so. However, if one day the police were to be removed from town streets, the town would be looted. That is what happened when the Supreme Court, by abusing the First Amendment, gave the green light to greed.

In no way do I imply that the whole law profession is criminal and corrupt. Democracy ­– ­any democracy – based on law. Law is the basis of every developed civilization. What is tragic about our situation is that the abuse of the law has unleashed an avalanche of what can be called unlawfulness, to which a good portion of our society is victim.

A tragic consequence of this situation is the corruption of our young and talented, for many of the most able and gifted of our youngsters aspire to the law profession, with the sole objective of getting rich and quickly. Ask a ten-year-old what she or he would like to be. Most probably – if the child is smart enough –you will hear: “a lawyer or a doctor.”  Ironically, at this age – and possibly, even at the threshold of the university – the smarties and whiz kids do not know exactly which of these two options to take. Both are the best moneymaking professions today. Ironically enough, the latter is a prey of the predator former. Fortunately, we still have very many good and honest lawyers and good, dedicated and selfless doctors. And yet, the situation is that of a town abandoned by the police.

A political reason having nothing to do with the interests of the majority of us, the people can be found behind any absurd interpretation of the First Amendment. Both the left and the right use the Amendment for their political purposes, and our Supreme Court readily helps them.

The left is silent when political correctness is in question. And nobody has the guts to remind them that political correctness blatantly violates freedom of speech and is a direct successor to the communist and Nazi concept of the one and only true ideology.

In 2002 the McCain-Feingold legislation prohibiting the use of “soft money” in election campaigns was passed. McCain called it corruption. However, under the onslaught from both the right and the left, the Supreme Court decided that a money donation was a kind of speech, and therefore is covered by the First Amendment.

And, by the way, burning the American flag is also OK, because it is a speech, albeit one bursting with hatred and in defiance of the memory of those who gave their lives defending our flag

But we do not have other Supreme Court.  Thank G-d it exists!

* A sub-chapter from Genrich Krasko, This Unbearable Boredom of Being. A Crisis of Meaning in  America (iUniverse, 2004). Ó Genrich L. Krasko, 2004

** Actually, as the Harvard Medical Study has discovered, only less than 2% of patients who suspect malpractice in their treatment ever file suit. On the other hand, only a tiny minority among those who did sue for malpractice had solid grounds to do so.

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