The problem with trial by lawyer

Back in my day
    By Chris Clemens

One of the first things I noticed when I leased my new laptop computer last week was the warning on the keyboard that I should read the accompanying Safety and Comfort Guide "in order to avoid serious injury to hands or wrists." My computer may have been warning me that years of hunt-and-peck typing had placed me in the early stages of carpal tunnel syndrome and that I needed to consult a doctor. Alternatively, the little notice may have meant that I had just picked up the only notebook on the market that snaps shut at random intervals just to see if the user is still awake. Obviously, though, there's something else going on here.

The host of ridiculous consumer safety warnings that have appeared on products from coffee makers to telephones reflects corporate America's profound fear of consumer litigation. They also point to a much broader and more disturbing trend in the way our nation is being run: more and more, American democracy is devolving into a system of rule-by-lawyer.

People scoffed when Stella Liebeck won her famous $2.7 million punitive suit against McDonald's in 1992 over a cup of spilled coffee. Liebeck's case was undoubtedly serious—her burns required hospitalization and skin grafts—but commentators at the time wondered what the decision meant for the evolution of American law in general.

They soon found out. Juries began to wield new authority over companies and organizations through fear of massive punitive decisions. Lawyers, trying to cash in on the new "right to fairness" doctrine that had emerged from sexual harassment litigation, started to expand federal control of the private sector through the civil court system. Worse, the government facilitated the whole process: why create a new regulatory board to enforce egalitarian legislation when you can have private lawyers apply popular new personal fairness and injury laws on a case-by-case, off-the-books basis? No budget to pass, no bills to write, and, best of all, no accountability measures to wade through.

Seven years later, the results of this process are beginning to come into focus: the legal com-munity's mandate has expanded beyond interpretation and into legislation, to the point where civil juries are now free to regulate golf rules, university ../sports facilities, and of course, the temperature of restaurant coffee pots. Lawyers and judges have become the government's vigilante operatives.

The upshot of this is an extraordinary increase in anxiety levels all across the country. The manifold safety devices that surround you as you sit in the backseat of a Cadillac, for example, do not represent the manufacturer's desire to show off its new technology so much as a new corporate imperative to avoid prosecution. Employees at several of the nation's largest companies have been told not to discuss the movie There's Something About Mary around the water cooler for fear of offending female coworkers.

The worst part about this new system is that the rules can change depending on where you live, whom you work with, who your lawyer is, and who sits on your jury if you happen to get sued. Many new personal fairness findings are sensible decisions that protect people from harmful industrial by-products or sex-based persecution at work. But since these laws are rights-based—as opposed to regulation-based—they are all contingent on the personal and subjective opinions of a million separate juries around the country. This leads to weird decisions: that trees pollute, for example, or that high-school coaches smacking players on the rear are legal when the player is on the field but illegal in the locker room.

New rulings for personal fairness and injury protection are in many respects a sign of a healthy and developing society. As we progress toward the goal of extending equal rights to every citizen, we can never stop questioning what those rights are. And as these rights get more complicated and harder to define, the role of attorneys and civil court cases will continue to expand. Yet the current trend—the government delegation of regulatory power to attorneys and judges through vaguely defined personal protection laws—is a recipe for paralysis. Companies aren't sure how far they must go to protect consumers from themselves, or what they must do to establish a fair and comfortable working environment for employees. Personal interactions between coworkers and community members alike often become strained and guarded for fear that a lawyer might be called in to assess whether one side's actions toward the other constitute "hostility."

Not only is rule-by-lawyer inefficient, it's destructive to our communities and personal relationships and damaging to the economy. The government must take a clearer position in defining standards for companies and local government organizations to follow, rather than leaving these questions up to attorneys to decide on a case-by-case basis.

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