Part One described the Law of Effect [B = f(x) under c]; Context and the ABC’s; and the first element in the equation [(-4) + (4)] = 0. Part Two describes the second.
Plus Four: Resolving Problems in Living
As previously stated, from an historical perspective, a prosecutor justifiably might charge that lawyerism is killing America. Consider the legal cases against asbestos . . . cases riddled with thousands of instances of documented fraud. These cases and others similar have bankrupted some of the largest commercial enterprises in America thanks to greedy, unscrupulous lawyers playing to gullible audiences in receptive judicial theaters of the absurd.(6) American industry now spends more on litigation than on research. Lawyerism has become a primary factor driving American industry offshore with the loss of millions of jobs.
If the charge is true, how do we change American law? The answer . . . and the only valid answer . . . lies in adhering to the scientific guidelines of specificity, objectivity, and accountability. In turn, adhering to these three guidelines requires adopting the following scientific approach: 1) Define the problem. 2) Target a goal. 3) Design a plan then put it into play. 4) Measure the consequences. [For a detailed description, see Chapter 8 in the novel, Inescapable Consequences (www.inescapableconsequences.com).]
PROBLEM: American lawyerism . . . an excess of legalistic behavior in America.
GOALS: To have a legal system that is ethical . . . one that serves the best interests of society. As is government, a legal system is necessary, but both should be limited. Ideally, they regulate behavior for the benefit of society and its citizens not lawyers.
Operationally, plaintiffs seek legal advice in order to attack someone else. Defendants seek legal advice to defend against attack . . . civilly by civilian plaintiffs or criminally by governmental prosecutors. Often, the seeking-behavior occurs under circumstances (stress) eliciting cognitive, emotional, and physiological distress (negative strain). The legal system should provide a socially-responsible, rapid, consistent, just, and fair resolution of disputes . . . civil and criminal. If the system is limited and ethical, society wins. If unlimited and unethical, society loses.
Given free rein, a legal system will take the bit into its mouth and run the societal wagon and itself off a cliff. Harness it through properly managed contingencies, and it will take a society and its members to a better place.
PLANS: No single modification can cleanse American law of its current excesses and deficits. A number of modifications, however, scream for implementation. The current, lawyer-ridden Congress is unlikely to consider even one of them, let alone pass all of them. These changes include the following (For a detailed description, see Chapter 13 in Inescapable Consequences.):
1) Prohibit lawyers from serving in the U.S. Congress. Those who administrate the laws should not create them.
2) In federal cases, implement a system requiring the prominent posting of flat fees per class of service. Some large clients already are moving in that direction.(7)
3) In federal civil cases, require the loser to pay the winner’s reasonable attorneys’ fees and court-costs; thereby, decreasing frivolous lawsuits, especially those based upon “contingent fees”. This policy is already in place in other countries. Hopefully, the fifty states would follow.
4) Place limitations onto federal “class action suits”. Firstly, bring the soliciting of clients under generally accepted, legal standards of practice. Secondly, require every such lawsuit to name every claimant, who must have given explicit, written permission for the lawyer to represent him prior to filing; that permission must state clearly the total amount of compensation demanded, the partial amount that each claimant could expect to receive, and the absolute amount and total percentage to be taken by the lawyers. Thirdly, require all such suits to be filed in the federal court located in the jurisdiction in which the headquarters of the defendant are located in order to stop lawyers from selecting districts favorably disposed toward such lawsuits.
MEASUREMENT: Without measurement, there can be no accountability. Preferably, measurement should be quantitative as well as qualitative. On the one hand, it must be an integral element of any legal system; on the other, protection of clients’ confidentiality and privileged communication between attorney and client must remain paramount.
Should the federal government publicly post wins and losses per class of federal case for each lawyer? No . . . the consequences are counterproductive. Government tried to do that sort of thing with physicians.(8) The consequence? Physicians began accepting only easier cases. Medical behavior came under the control of bureaucrats’ scorecards rather than patients’ welfare. Moreover, attempting to weight results for difficulty is inexact and ineffective.
Maintaining confidentiality and rejecting public scrutiny leave few options. Ironically, the most effective form of accountability may be the legal system itself. Lawyers who violate regulations should face harsh penalties, civilly and criminally. Civilly, triple damages for fee-gouging coupled with possible disbarment, temporary or permanent. Criminally, fines and/or imprisonment for willful misconduct.
Whereas positive control generally is preferable, in this case, negative control may be unavoidable. American lawyers and judges inside the system almost exclusively employ negative control (avoidance, escape, and punishment) against non-lawyers outside the system. Accordingly, using negative control for those under positive control inside the system seems consistent, fair, and just.
Additionally, a non-lawyer-based Congress can establish a commission to monitor legal activity in the federal courts by recommending standards of consistency, justice, and fairness then by measuring the degree to which federal cases meet the standards recommended. The standards can be scientifically-driven, evolving based upon the results of measurement. They neither should be law nor be binding on the system. The commission itself should have no legal authority other than the collection of data; which, like the standards recommended, would be public.
Imagine a legal system scientifically-based and scientifically-driven, operating in the interest of the public as individuals and the nation as a society. Imagining, however, is one thing . . . creating, another.
The alternative? A nation on fire consuming itself in flames fueled, in part, by American lawyerism.
6. See, for example, 1) Glater, JD: “Civil Suits over Silica in Texas Become a Criminal Matter in New York”. The New York Times, 18 May 2005, Business Section; 2) Sparshott, J: “America’s Cutting Edge: Innovation Creates Industry, Jobs”. The Washington Times, 01 May 2006, page 12; 3) Sparshott, J: “U.S. Companies Closing Up Shop”. The Washington Times, 17 April 2006, page 1; and 4) Koppel, N: “Arcane Law Brings Conflicts From Overseas To U.S. Courts.” The Wall Street Journal, 27 August 2009, page A11.
7. See, for example, Koppel, N and Jones, A: “‘Billable Hour’ Under Attack”. The Wall Street Journal, 24 August 2009, page A1.
8. See, for example, Kolker, R: “Heartless”. New York Magazine, 24 October 2005, page 42.