TIME: Almanac 1993/TIME Almanac 1993.iso/time/082691/0826110.000

Text File | 1992-08-28 | 8.1 KB | 170 lines

                                                                                LAW, Page 54

Do We Have Too Many Lawyers?


In a bid to boost his ratings, Vice President Quayle swipes at
the bar. A transparent ploy -- but his case has merit.

Reported by Julie Johnson/Washington and Ratu Kamlani/New York


    As a political gambit, the method is tried and true. If
you are an unpopular Vice President, refurbish your image by
deriding an occupational group with an even lower approval
rating than your own. Spiro Agnew popularized the ploy back in
1969 with his bitter denunciations of the news media. Following
the same playbook, Vice President Dan Quayle -- a lawyer --
wangled an invitation to the American Bar Association convention
in Atlanta and last week used the forum to mount a blistering
attack on the legal profession.

    "Our system of civil justice is, at times, a
self-inflicted competitive disadvantage," Quayle declared at the
outset. What followed was a somewhat pedestrian recital of
recommendations for reforming the legal system from the
President's Council on Competitiveness, which the Vice President
chairs. Many of these ideas represent pro-business leftovers
from the Reagan AdBut Quayle's speech is likely to be remembered
for the string of rhetorical questions he asked in conclusion:
"Does America really need 70% of the world's lawyers? Is it
healthy for our economy to have 18 million new lawsuits coursing
through the system annually? Is it right that people with
disputes come up against staggering expense and delay?"

    Those were fighting words to outgoing A.B.A. president
John J. Curtin Jr. Departing from protocol, Curtin stepped to
the microphone to offer an impromptu rebuttal. "Anyone who
believes a better day dawns when lawyers are eliminated bears
the burden of explaining who will take their place," Curtin
declared to cheers from the audience. "Who will protect the
poor, the injured, the victims of negligence, the victims of
racial discrimination and the victims of racial violence?" Not
mentioned, of course, were the corporations that provide some
A.B.A. members with the bulk of their income. Quayle was allowed
the final word. "Nobody is talking about eliminating lawyers,"
he said, backtracking a bit. "So let's not be extreme about
this."

    That is precisely the problem -- almost everyone is an
extremist of one stripe or another when it comes to debating the
legal system. Lawyers are advocates, and for some, no cause is
more likely to arouse passion than the defense of a profession
that, after exacting a grueling apprenticeship, provides their
livelihood. The political system is apt to provide only limited
succor; nearly half the members of Congress are lawyers. That
is certainly one reason why nonlawyers feel compelled to resort
to the weapon available to oppressed people everywhere --
sarcastic humor. (Q. Why does New Jersey have so much industrial
waste and Washington, D.C., so many lawyers? A. New Jersey had
first choice.)

    Quayle is far from the first politician to mine this
populist bedrock of antilawyer sentiment. Jimmy Carter attacked
the legal profession for providing unequal standards of justice
for the rich and the poor. Quayle's emphasis was not justice but
competitiveness. By framing the debate in these terms, he raised
a series of provocative questions about the legal profession's
role in national economic life.



    How Many Lawyers Are Too Many? By A.B.A. reckoning, there
are now almost 800,000 licensed lawyers in the U.S., 1 for
every 300 Americans. Even amid the well-publicized contraction
of blue-chip firms, the fruits of the law remain abundant --
across the U.S., partners earn an average of $168,000 annually,
with incomes up to $1 million not unusual in places like
Manhattan. Small wonder 94,000 college graduates applied for
admission to law school this year.

    The glut of lawyers, as Quayle pointed out, is a
peculiarly American phenomenon. The standard defense is offered
by Vanderbilt Law School professor Harold Levinson, who says,
"We ask more of our legal system, perhaps more than any other
country in the world." True, the courts have a broad mandate in
everything from the environment to civil rights, but blaming the
legal system for the nation's disproportionate number of lawyers
is a somewhat circular argument.



    Is There Too Much Litigation? This claim is at the heart
of Quayle's argument: the Council on Competitiveness contends
that lawsuits filed in federal court have nearly tripled in 30
years. Quayle also trumpeted a 1989 Forbes magazine estimate
that the annual cost to the nation of all litigation and related
insurance is more than $80 billion. As Walter Olson, the author
of The Litigation Explosion, argues, "A litigator can come
around, dump a pile of papers on your front lawn and you can go
literally broke trying to respond to it."

    No one can deny the growing American penchant for
ludicrous lawsuits, but the issue that arouses Quayle is far
narrower: product liability suits against major corporations,
on whose not-so-hidden behalf Quayle was speaking. David
Leebron, a professor at Columbia Law School, acknowledges that
the number of cases has soared in a few areas, such as damages
from asbestos. "These are primarily what make it look like
litigation has exploded," he contends. The significance of the
class-action lawsuits, he contends, is that they have "increased
the numbers and kinds of plaintiffs who can bring their claims
to court."

    In the current lax regulatory climate, which the Bush
Administration fosters, lawsuits often represent the only way
to enforce corporate accountability. As consumer lawyer Linda
Lipsen says, "You can't stand Corporate America before a
blackboard and have them write 100 times: `I will not put issues
of greed over issues of public safety.' " The cozy pattern of
self-regulation among some professional groups, like doctors,
only compounds the litigation problem. Legal critic Charles
Peters, the editor of the Washington Monthly, argues that this
means "there is no effective discipline for misconduct by a
physician other than the malpractice suit."



    Did Quayle Offer the Right Remedies? Some of the Vice
President's proposals, such as a societal emphasis on mediation
over litigation, can be embraced by everyone other than the most
self-protective attorney. Others are intriguing, such as his
advocacy of the English system, in which the loser in a civil
suit is required to pay the victor's legal bills.

    But no legal issue raised by the Vice President is more
controversial than his attack on punitive damages in civil
cases, which he claims "have grown dramatically in frequency and
size." Many legal experts deny that such a problem exists. There
are, to be sure, random horror stories of seemingly senseless
multimillion-dollar jury verdicts, but scant evidence exists
that such anecdotes add up to a statistically valid pattern. A
1990 study by the American Bar Foundation concluded that "juries
do not award punitive damages in a large percentage of money
damage cases." But Quayle insists that judges, not juries,
should have the sole power to assess monetary damages. This is
an odd stance for a populist, since juries represent the one
role for the average citizen in the closed world of the legal
system. If reform is needed, far more worthy is an issue Quayle
neglected: the way plaintiffs can win a major case, as in much
of the asbestos litigation, and then watch as their compensation
is devoured by lawyers and expert witnesses.

    In politics, it is dangerous to judge the quality of the
message by the identity of the messenger. For many Americans,
Dan Quayle remains the most problematic figure in the Bush
Administration -- the target of TV comics rather than the source
of substantial policy proposals. None of this should detract
from the public service Quayle performed at the A.B.A.
convention. Maybe it is true that God loved lawyers because he
made so many of them, but that does not mean that the rest of
us -- from the Vice President on down -- need to be happy with
the result.