From Joshua Green’s excellent article about why America does not hate lawyers
Years of conservative agitation about trial lawyers have led the public to believe that the courts are clogged with “frivolous lawsuits.” But that belief is unlikely to withstand a national debate, because the truth is fundamentally different from what tort reformers pretend. There has indeed been a rise in frivolous claims. But they haven’t been brought by personal injury lawyers; those claims have actually decreased over the last decade. The single factor most clogging the judicial system is frivolous litigation brought by corporations against corporations, which don’t involve independent trial lawyers at all. For example, John Deere went after a competitor for using the same shade of green that Deere paints its tractors. Gillette sued Norelco, claiming its ads for a new electric razor were “false and deceptive” because they depicted non-electric razors as “ferocious creatures.” Nabisco sued Keebler over the latter’s claim that its chocolate-chip cookies contained 25 percent more chips than Nabisco’s. Each of these cases is more representative of the true problem of frivolous litigation. But because they involve a Republican constituency—business—rather than a Democrat constituency like trial lawyers, tort reform advocates don’t mention them.
To persuade the public that frivolous personal injury suits have brought on a crisis, advocates of change religiously invoke cases like the elderly woman who spilled coffee on herself and won a $2.9 million jury verdict against McDonald’s. Such stories tap into a genuine sense of frustration many Americans have with the modern tendency to blame others for problems of their own making. But on closer examination—the kind likely to happen if the GOP declares open war on trial lawyers—such anecdotes will be exposed as the urban myths most of them are. As Roger Williams University torts professor Carl Bogus explains in his book, Why Lawsuits Are Good for America, the woman who spilled her McDonald’s coffee had to undergo a skin graft, spend weeks in the hospital, and offered to settle for $10,000 (McDonald’s refused). She only sued as a last resort—the epitome of conscientious use of the legal system. Her original award of $2.9 million was later reduced by a judge, as most such judgements are, to $480,000, and she wound up settling for even less. To prevent other suits, McDonald’s, which had previously ignored more than 700 similar complaints, stopped serving near-boiling coffee, as did its competitors.
There are plenty of real abuses by lawyers, though tort reformers seldom go after them. That’s because they affect individuals, not corporations. As Stanford legal ethicist Deborah L. Rhode points out in her book, In the Interests of Justice , the frequent criticism that legal services are too costly (and lawyers too greedy) stems in part from the fees lawyers charge for routine cases like bankruptcy, immigration, welfare claims, and uncontested divorces, each of which could be handled more affordably by paralegals or other certified professionals—the average uncontested divorce, after all, takes only four minutes. But lawyers maintain a powerful monopoly over these basic services that they’re wholly unwilling to yield. In fact, to kill off any threat of competition, the American Bar Association recently decided to increase enforcement of “unauthorized practice laws”—not against fraudulent lawyers, but against non-lawyers such as accountants, who provide legal services.