Why clients are told to "keep quiet"

It is practically axiomatic in legal circles these days that lawyers instruct their clients to have no contact with the other side. Is this really good advice? Most lawyers take the position that their clients should not speak with anyone about the subject of the legal dispute to prevent the unwary client from sticking his foot in his mouth. This surely makes sense in a criminal matter where the potential defendant is clearly outgunned by the many years of experience of interrogating police officers and prosecutors. It may also be true where an injured claimant is contacted by a seasoned insurance adjustor who knows how to get information that will harm any future potential claim.

But it is not true for the vast majority of other civil cases that are filed, including divorces and other family matters, probate disputes, business disputes, real estate disputes, medical malpractice and a host of other claims that routinely end up in court without any conversations ever having been held between the two parties with the dispute. And why is it that this process only occurs in the United States? Are Americans that much dumber than the rest of the world where such secrecy is not the standard practice and where the parties actually try to resolve their disputes before they run off to the courthouse?

But it’s not just the lack of pre-lawsuit discussions between the parties that’s a problem; the lawyers themselves rarely discuss an early resolution. Most lawyers will tell you they don’t know enough about their cases in the early stages to advise their clients properly about a fair resolution. They need to spend lots of money doing discovery first. But is that what the clients really want? Would most clients rather have their cases resolved early on before all the money has been spent? Believe it or not, that is just not the mentality of the legal community, and, to put ultimate blame where it ought to be, it is also not the mentality of most Americans who would rather wash their hands of the dispute and turn everything over to the lawyers.

Who EXACTLY represents the public's interest in civil litigation?

Civil cases between private parties clearly impact the general public; time is used by judges and court personnel, and decisions made by judges and juries can have a profound impact on the lives and businesses of countless people. I have heard many lawyers promote our tort system by arguing that it is very effective in preventing so-called transgressions by corporate America. Their view is that the threat of a lawsuit is key in preventing negligent behaviors before they occur. Of course, the lawyers have not actually been hired to represent the public’s so called best interests; they are hired only to get the most they can for their one client. In fact, no one represents the public’s interests in civil lawsuits, not even the judge, whose sole job is to referee the dispute before him.

What I find most troubling by the argument that these lawyers are acting in the public’s best interests is that they have not asked the public to define what its best interests are. Instead, they somehow equate the public’s best interests as identical to the amount of money they can get for the one client they actually do represent.

But what gives an individual lawyer the insight to know what is and what is not in the public’s best interest? Is the public’s best interest served by causing doctors and hospitals to run countless unnecessary tests just to avoid medical malpractice claims? Is the public’s best interest served by making the cost of doing business and the cost of buying insurance so high as to force companies out of business or to price their products so high as to make them uncompetitive? Is the public’s best interest served by filling operators’ manuals with dozens of useless warnings that very few people ever read, thereby reducing the importance of the few warnings they actually should read, just to have some warning in print to cover any potential lawsuit the company might face?