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Commentary by Dave Cartun
Special to the Herald/Review
There are four important areas of change needed in our civil legal system: conduct of lawyers and judges, speed of justice, tort reform, and more arbitration/mediation.
The United States has 80 percent of the world’s lawyers and 6 percent of the population.
Why? And what should that tell us about ourselves?
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The outward symptoms: call 1-800-lawyers, the tough or compassionate faces staring at you from TV and billboards, and shortages of doctors.
The internal root cause is a legal system acting as a closed fraternity. Lawyers become judges, lawyers judge judges, and judges favor lawyers over users and make laws in place of the people.
Fraternity members are the players, referees and protest committee and control entry fees, rules, process and speed while perpetuating their financial rewards.
Lawyers file class-action lawsuits in certain geographic areas of the country known for granting large cash awards. Even when the award is set aside upon appeal, the lawyer gets publicity and the sleazy clients keep rolling in.
Lawyers promote a litigious attitude through advertising and drive up the cost of goods and services. They file nuisance suits purely for income knowing that deep pockets may not want to spend the time and costs to acquire justice.
One example was the litigant in Nebraska who pulled a Hobart meat slicer, which was missing the thumb guard, from a landfill and cut off half his thumb. His lawyer should have been thrown to the wolves and the permitting judge removed from the bench.
In Europe and Japan, suing doctors is almost unheard of and malpractice insurance cost is negligible.
A person navigating the halls of justice is at the mercy of the fraternity since it does not deal justice a hand in timely fashion. Courts are backlogged. Lawyers request extensions because they’re too busy, and judges grant delays.
Clients should be provided contract agreements protecting their right to efficiency, timely disposition and financial damages from the lawyer if the lawyer does not act in a timely manner and best interests of the client. Those results should lead to censure and possibly malpractice damages and disbarment, the same treatment lawyers dish out to doctors.
But how do you embed that in a system where the fraternity polices itself?
And how long would it take since the fraternity has insulated itself politically and professionally from outside review?
Tort reform is the most immediate need. We cannot continue raising the costs of goods, services and medical care while putting America at a competitive disadvantage with the world. But ask any tort or trial lawyer if he or she cares.
Life is a risk every day. We are not entitled to blame doctors for our genetic make-up, physical fitness, lifestyle, or their attempts to improve our health, save our life or deliver our baby. It’s impossible for doctors to be perfect and overcome every unknown, every time, that may arise during treatment, surgery or delivery. A patient should be entitled to damages only due to gross negligence or total incompetence on the doctor’s part.
Ridiculous settlements arising out of everyday, normal risks have created two factors that threaten our health care: doctors must give unneeded, costly tests just to cover themselves and are leaving their speciality or business entirely due to malpractice insurance costs.
Also, we may never consider the total impact of malpractice suit investigations on a doctor’s current practice or family life.
Cochise County is unique to the state in that its arbitrators and mediators are trained through the Superior Court for the Alternative Court Resolution Program. This court diversion program needs a higher utilization because it offers better service, timeliness and lower costs to the parties involved.
In arbitration, parties present evidence and exchange information. The arbitrator makes the decision. A mediator is a facilitator helping the two parties examine their grievances, reach an agreement and translate it into a contract outlining the what, when, where, how and consideration of the final agreement.
In arbitration/mediation, both parties avoid lawyers, contribute to the resolution, achieve a sense of accomplishment and avoid the winner-loser result of court.
Conclusions. Break up the fraternity. Stop lawyer advertising. Make judges and lawyers adhere to timely schedules or be punished. Give judges the power to discipline lawyers who ask for delays due to too numerous a caseload.
Punish trial lawyers who file nuisance lawsuits. Challenge the jury tort reward system by installing financial caps as part of health reform. Raise the maximum dollar limits so most civil actions go to arbitration or mediation first.
Lawyers earn their bad reputation, but they perform a service that is occasionally needed.
Remember, if you really need a lawyer, get one with one hand. Then he can’t say, “On the other hand …”
DAVE CARTUN is a Bisbee resident who has been involved with pro baseball, volunteer coaching, has served on the Bisbee City Council and is a business entrepreneur. He is a registered independent. Look for the Independent View once a month in the Herald/Review.
gtown wrote on Aug 22, 2008 1:05 PM: