The cost of justice (part 1)

Is the cost of justice in the United States worth the price we pay? The United States invests more of its gross national product than any other country in resolving our disputes with one another. In my own personal experience, I handle products liability cases throughout North America, that is, in both the United States and Canada. The same products I represent are sold in both countries in comparable volumes, but there is almost never a lawsuit filed against those products in Canada, whereas I keep extremely busy defending the same products in the United States. Presumably, the same incidents occur in Canada as in the United States, but no one seems to bring a lawsuit there. Does anyone believe the Canadians feel they are receiving less justice than we are in the United States?

My favorite story comes from a dinner conversation with a Chinese law professor when I asked him how a personal injury claim would be handled in China. He did not even understand my question, so I posed a typical hypothetical case to him and asked him first how the medical bills would be paid to the injured worker? He responded that in China there were no medical bills because everyone had free health care (a topic worthy of a future blog). So I asked him about payment of lost wages, to which he pointed out that all employers in China continued a worker’s salary while he was sick or injured so he would never lose any income from an accident. Finally I asked him about “pain and suffering,” to which he replied with a deep smile that betrayed my cultural ignorance, “For pain and suffering we have acupuncture.”

So, are Americans better off than the citizens of every other country in the world because we sue each other every day for wage loss, medical bills, and pain and suffering? I suggest that this question would likely be answered very differently by a group of lawyers than by a group of their clients who have gone through the American legal system.

In my novel, The Litigators, the lawsuit, which is the focus of the book, is entirely typical of lawsuits filed every day in the United States, and the process in which my characters find themselves enmeshed is also highly typical. If you decide to read the book, I suggest you ask yourself this question all over again. You may be surprised at your answer.

Join me next week for More about the cost of justice in America.

The theory of justice

Why is it that when a lawsuit is filed even the people who win often come away with a sense that they actually lost? In the United States we have what lawyers call the "adversary system.” The theory behind this approach to justice is that if both parties fight equally hard to persuade a judge or jury of the virtues of their respective positions, eventually the truth will come out and justice will be done. This theory of course presumes that that battle at hand is not between the local high school football team and the Green Bay Packers, or between Bill Gates and some homeless chap. Unfortunately, any system of justice that is dependent on the equality of financial resources and the equality of the respective lawyers is fundamentally flawed. True, much of the time the battles are between relative equals, but often they are not, and in these latter cases justice is not possible in our adversary system.

Another flaw in the theory favoring an adversarial system is that it presumes that everyone with a dispute actually wants to spend the money needed to support the adversary system. By its very nature, the adversary system is an extremely expensive way of resolving disputes because, to achieve equality of bargaining position, both sides must take every conceivable step to improve their positions. If one side does more than the other, the likelihood that a just result will be realized diminishes drastically. So both sides fight as hard as possible. Not only does this dramatically increase the costs of resolving the underlying disputes, it also dramatically increases the stresses imposed on parties who are forced to spend their energies attacking each other. No wonder even the winners leave court questioning whether justice has been done; after they have been ravaged financially and raked over the coals personally.

This is why I wrote my novel The Litigators – to bring to the forefront the enormous wastefulness of the American system of dispute resolution. If this topic interests you, I suggest you read the novel and then ask this question when you are done: Who won the lawsuit? The answer you give may surprise you.

Join me next week for What does it mean to “win” a lawsuit?