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Legal Reform

Now is the Time for ‘Life Without Lawyers,’ Says Covington & Burling Partner

Posted Mar 24, 2009 12:16 PM CST
By Rachel M. Zahorsky

New York City-based litigator and legal reform activist Philip K. Howard has been waging a battle to reshape the U.S. legal system for 15 years. Now, with the collapse of Wall Street financial giants and the promise of new regulations by the Obama administration, the Covington & Burling partner says it’s also time to rebuild the country’s legal infrastructure and abolish ineffectual laws and administrative structures that hinder society—specifically in medicine and education.

In his new book, Life Without Lawyers: Liberating Americans from Too Much Law, one claim Howard discusses is the constant fear of litigation that he says has stricken America’s health-care system and paralyzes teachers and doctors from fully performing their jobs.

“Doctors go through the day defensively,” Howard said in an interview with the ABA Journal. “It’s like they have little invisible lawyers on their shoulders whispering in their ears, causing them to act fearfully and not be reasonable.”

Now is the time for lawyers to enhance the profession by refraining from making any imaginable argument in court, he said. Rather, attorneys need to contemplate the effects those arguments could have on the future conduct of society and judges. One solution Howard suggests in his book is the creation of separate administrative health courts to expedite medical malpractice claims, which currently average about five years to settle, he said.

Schoolyard playgrounds are another daily example of well-intentioned regulations producing effects opposite from the ones originally sought, Howard said.

“Courts are beginning to understand that they need to make rulings regarding tort cases before it goes to a jury,” Howard said. “If any child who falls on a seesaw can sue, all seesaws will be removed from playgrounds because no one wants to take responsibility. If you are going to have a seesaw, there will accidents at times, but if society isn’t willing to take some risks, we won’t have playgrounds.”

The apprehension of drawn-out court battles and costly judgments results in the consistent removal of school playgrounds, which leads to the larger problem of child obesity, Howard added.

“What I’m looking at is what it takes to restore trust by ordinary people in society, so doctors, teachers and others can do what they think is right,” Howard said. “Law should enhance our freedoms, not be counterproductive.”

A list of reviews and future appearances by Howard can be viewed on the website for Life Without Lawyers.

Comments

1.

B. McLeod
Mar 24, 2009 1:58 PM CST

Of course, plaintiffs’ counsel represent their clients, not “society” at large.  Consequently, lawyers acting in such capacities are pretty much precluded from approaching their clients’ cases as Mr. Howard suggests, and he should be well aware of that.

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2.

J.D.
Mar 24, 2009 2:11 PM CST

It’s especially time for getting rid of those Covington lawyers who are defending jihadists and dropping their pants in court.

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3.

P. Bryson
Mar 25, 2009 7:48 AM CST

Maybe it is actually time to “get rid of” administrators and insurers who overreact to liability decisions and act unreasonably to eliminate short-term costs instead of acting structurally to address long-term issues. If one child is compensated for a fall from a seesaw, administrators and insurers need to stop assuming that changes premises liability law to establish a per se rule.

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4.

OWH, Jr.
Mar 27, 2009 5:08 AM CST

Howard has been screaming like this for years and whenever you check his facts they’re never as he says.  See Anthony Lewis’s review of Life Without Lawyers in the latest issue of the New York Review of Books for only the most recent example.  Opportunistic blowhards like Howard are more of a problem than lawyers.

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5.

sam
Mar 27, 2009 7:17 AM CST

why doesn’t this dude turn in his law license then and go do something else

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6.

logos
Mar 27, 2009 7:23 AM CST

Simple solution: re-instate the defense of contributory negligence, and you will filter out 80% of the frivolous litigation that should never reach a jury.  A lot of people find contributory negligence to be unjust, but think about it for a moment.  A defendant is liable for any and all harm that his negligence—no matter how slight—caused to the plaintiff.  The same principle should work in reverse and deny relief to any plaintiff whose contributory negligence—no matter how slight—caused his own harm.  Comparative negligence is intellectually inconsistent and clogs the courts with disputes that should be disposed of on summary judgment.

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7.

Ben
Mar 27, 2009 7:49 AM CST

Doctors should go through the day defensively. As bad as you can screw somebody up once you start working on them it is very appropriate. What does that guy not understand about that?

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8.

B. McLeod
Mar 27, 2009 7:55 AM CST

Logos has a point in that the “comparative” systems have certainly eroded personal responsibility.  It is common now for people to sue others for situations they have caused themselves, externalizing the blame for their stupidity, because they have never grown up.  This is transforming our entire society into a gaggle of perpetually dependent Peter Pans.

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9.

T Kaye
Mar 27, 2009 8:11 AM CST

The comments here about comparative responsibility overlook the point that these laws have been in place for decades in other comon law countries without leading to over-defensive practises. Comparative fault does, after all, deny a plaintiff a significant proportion of damages and, in jurisdictions with so-called ‘modified’ schemes, it still often acts as a complete defense anyway. The real problem is that, for too long, US law applied waivers as written and so gave potential defendants no incentive to improve their practises. Now that waivers of liability for personal injury are seldom enforced, those defendants - with no experience in how to manage risk - just panic. What is required is not a change in the law, but proper training in risk assessment and management. The military has been doing this for decades; it is time to have civilian organizations follow suit.

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10.

HP
Mar 27, 2009 8:14 AM CST

No doubt the book is just more of the same talking points the insurance industry has been recycling for decades.  You know, playgrounds are no fun anymore, that lady who got millions for the coffee burn at McDonalds, all the doctors are leaving ____ state.

As to #6’s point about contributory negligence, I’m not sure that comparative negligence is intellectually inconsistent—there’s a reasonable debate as to whether you need a cut-off at some percentage (e.g. the speed boater who is 5% negligent in the wreck of a $20 million yacht), but the general idea that a loss should be apportioned among those who caused it according to their degree of fault strikes me as much more reasonable than the idea that a 10% negligent plaintiff can recover nothing from a 90% negligent defendant.

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11.

James
Mar 27, 2009 8:15 AM CST

This is the same drivel that tort reform blowhards have been spewing out for years.  Schools don’t get sued because kids fall off seesaws; they get sued because seesaws with rotten wood break and injure kids.  And based upon the statistics on the number of deaths that result from medical errors and incompetence, the medical profession isn’t listening to those little lawyers on their shoulders.  Instead of complaining about the legal system that has to come in and mop up their mistakes, the medical profession and their $600/hr New York lawyers need to put on their big girl panties and clean up their act.

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12.

George Lenard
Mar 27, 2009 8:22 AM CST

When I started law school in 1980, I was totally surprised by the notion that tort liability depended on proof of negligence.  Who would have thought it?  I had been raised in the popular and media culture that promoted the notion that people are necessarily liable for accidents that happen on their property, etc.

It’s only become more so in the ensuing decades.  Tort law in fact is largely driven by the compensatory imperative, not the fault-based deterrence imperative, especially once cases get to a jury. 

So maybe its time to acknowledge the primacy of the desire to compensate the injured, and to apply more broadly, such as in med. mal. the grand compromise reached so many years ago with workers’ comp.—benefiting plaintiffs with no-fault liability rules ; benefiting defendants with reasonable and definitive measures of damages.  Ah, you say, then there’s no deterrence of bad doctoring?  I disagree. There’s still the threat of direct governmental and professional regulation, as well as increased insurance premiums.  Plus, as we move towards medical-outcome transparency as part of healthcare reform, having a bad track record will quickly destroy careers, regardless of liability, by eroding the doctor’s patient base.

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13.

Sam McVey
Mar 27, 2009 8:36 AM CST

Of course, one of Stalin’s priorities was to follow Dick the Butcher’s advice for creating a dictatorship:  “...kill all the lawyers.”

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14.

Kalifornia Arnold
Mar 27, 2009 9:05 AM CST

Sorry to correct you #13—but “kill all the lawyers” (a quotation almost always taken out of context) was from William Shakespeare . The king, when advised how to set up a lawless and amoral society was told, in order to achieve that goal, is first “let’s kill all the lawyers.”

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15.

Brian
Mar 27, 2009 9:05 AM CST

In 1784, philosopher Emmanuel Kant wrote an essay titled “What is Enlightenment?”  He was replying to a question in an essay published a year earlier by Reverend Zöllner, an official in the Prussian government.  Kant’s essay is often cited for explaining that the lack of Enlightenment results from a people’s inability to think for themselves, due not to their lack of intellect, but lack of courage. 

Kant also explained the preconditions necessary to make it possible for people to enlighten themselves. He concluded it requires the abolition of all church and state paternalism and the freedom to people to use their own intellect. Kant praised Frederick II of Prussia for creating these preconditions.

“Enlightenment is man’s emergence from his self-incurred immaturity.”  In greater detail, Kant explained that the immaturity is self-inflicted - not from a lack of understanding, but from the lack of courage to use one’s reason, intellect, and wisdom without the guidance of another.  Kant exclaimed that the motto of enlightenment was “Sapere aude”! – Dare to be wise! 

The age of Enlightenment has apparently come and gone, eh?

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16.

B. McLeod
Mar 27, 2009 9:08 AM CST

I Kant well tell you.

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17.

A Koch
Mar 27, 2009 5:34 PM CST

No. 14 should know that the ancient grudge against lawyers first arose in the English Peasants’ Rebellion of the late 14th century, long before Shakespeare.

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18.

Kalifornia Arnold
Mar 28, 2009 3:45 PM CST

#17—Thanks for the additional historic information—I image the Rebellion of the 14th Century wasn’t very peasant

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19.

Shawn White
Mar 28, 2009 3:56 PM CST

So according to Howard lawyers cause child obesity. The big problem with Howard’s argument is that it is fiction. I know many doctors and teachers and they are not paralyzed with fear of being sued. In fact the teachers I asked had never even thought about being sued.

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20.

B. McLeod
Mar 28, 2009 7:37 PM CST

Actually, authors such as Max Rabin have traced the “Ancient Grudge” against lawyers to early Greek and Roman cultures.  It could even extend (beyond our knowing) into prehistoric cultures that have left no written records.

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