You’ve probably heard the old joke about the one-armed man who couldn’t be a lawyer, because lawyers all have to say “on one hand….but on the other hand…”
What made me think of it was an excellent post by Doug Masson this morning, which I encourage everyone to read. Doug was commenting on the unseemly effort by local media outlets and others to find someone–anyone–to blame for the tragedy at the State Fair. (Okay, anyone with money.) Now, perhaps when all the facts come out, there will be evidence that the stage collapse was the result of negligence, but given what is now known, it is more likely that this should be filed under “shit happens.” It’s probably human nature to want someone to blame when bad things happen, but sometimes an accident is simply an accident.
On the other hand (you knew this was coming, right?) some lawsuits that seem frivolous aren’t just examples of our amply documented American litigiousness. One example is the widely mocked and misunderstood “McDonald’s coffee” case. An elderly woman spilled her coffee on her lap, and was so severely burned she had to be hospitalized. When a jury awarded her several hundred thousand dollars, the “tort reform” chorus took to the airwaves to demand limits on lawsuits, and the case became a rallying point for those who want to make it more difficult for injured people to sue.
What most of the media didn’t report was that McDonalds had been sued numerous times before over injuries caused by their practice of brewing unreasonably hot coffee (apparently, you get more coffee from the same amount of beans if it is really, really hot). In this case, the elderly woman’s suit initially asked only for payment of her hospital bills, and McDonalds had refused to pay anything. It’s likely that the size of the verdict was a product of jury outrage, in the nature of punitive damages.
Not long after I was married, I went with my husband to a convention of architects. When one of the other attendees found out that I was a lawyer, he cornered me and lectured on the evils of frivolous litigation. I finally asked him what he would suggest as a remedy. “Why, just outlaw frivolous lawsuits!” he responded, with an inflection suggesting that only an idiot would ask such a question. He didn’t take it kindly when I pointed out that you can’t identify “frivolous” cases until they’ve been litigated.
On one hand, I’d love to be able to weed out suits brought by the greedy and unscrupulous, or just by people looking for a scapegoat.
On the other hand, justice isn’t served by rules that make it difficult or impossible to litigate legitimate grievances.