If the exorbitant out-of-pocket cost of lawsuits for personal injury and other wrongful acts fails to cause extreme apprehension about the direction the U.S. legal system is moving, consider the adverse impact the proliferation of litigation has had on the character of Americans doing the suing, as well as those who fear being sued – not to mention the hostile emotions and counterproductive energy that are natural byproducts of adversarial proceedings. Add to that the resulting negative perception the world has of America’s once-vaunted legitimacy, and one could easily conclude that lawsuit-happy America is in really big trouble.
There was a time, however – and not too long ago – when America’s judges and lawmakers almost universally viewed litigation as a pariah. In those days, our Common Law tradition discouraged the urge to sue; Americans turned to litigation only as a last resort. There used to be a stigma attached to “going to court,” regardless of the reason.
Even Abraham Lincoln, a lawyer by trade, urged fellow lawyers to discourage litigation, despite the lure of money to be made by it. “Persuade your neighbors to compromise whenever you can,” he advised his colleagues, adding cynically, “There will still be business enough.”
In the past, when America was a meritocracy, people sensed what the law allowed and didn’t allow. Citizens felt accountable for their choices and took responsibility for their actions. They accepted risks they wouldn’t take now – not with the overhanging fear of potential liability that threatens every personal decision and activity today.
The public’s past antipathy about going to court tended to dampen the demand side of litigation. What kept the supply side largely in check were the American Bar Association’s now-defunct rules that forbade lawyers from instigating lawsuits.
Even so, the number of lawsuits in America increased gradually until 1977, when the Bar’s Rules of Professional Conduct changed abruptly. That’s when the Supreme Court in effect gave its blessing to anyone with an urge to sue.
By giving lawyers the right to advertise for clients, the highest court in the land opened the floodgates to litigation by energizing the pursuit of “the great god buck” that drives much of the law business today.
Thus began the transformation of America’s once-laudable tort system for the redress of civil grievances into what now amounts to little more than a get-rich-quick national lottery – the lawsuit lottery – where everybody plays, like it or not.
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