Issue #89 • September/October, 2004
Mac, that’s O.E. MacDougal, our poker playing friend from Southern California, is back. He blew into town yesterday with the good weather and brought his fishing rods, his sense of humor, and a new recipe.
“Here,” he said.
When I looked up he was handing me a bowl with some kind of yellow-green liquid that looked good and smelled great.
“What is it?” I asked.
“What’s it called?”
“I haven’t named it, yet.”
“Your own recipe?”
“What’s in it?”
“Split yellow peas, red lentils, barley, rice, and a bunch of other things.”
“What’s the meat?” Dave asked.
I looked across the office to where Dave was eating a bowl of it at his computer.
“Chicken thighs, cubed” Mac replied.
“It’s good,” I said.
“It’s great,” Dave corrected me.
“Okay, great,” I said.
“Thank you,” I said to Mac.
“Hey, I’ve been meaning to ask you, are you following the presidential campaign?” I asked him.
“What’s to follow?” he said.
I must have had a puzzled look on my face so he answered my bewilderment.
“Despite all the poll tracking that goes on daily, nothing is going to be decided until fall. They won’t abide by the promises they are all making, anyway. Besides they don’t talk about real issues like social security or legal reform. They kiss babies, shake hands. And besides that, except for Bush they’re all just a bunch of lawyers, and too many lawyers making laws and setting policy is inherently a bad thing.”
“Sounds like you’re kind of down on the whole system, Mac, especially lawyers,” I said.
“I’m pessimistic about too many lawyers in the political process, that’s for sure,” he said.
“You serious?” I said
“I’m very serious.”
Dave had been listening to our conversation. He has an older brother, Hugh, who was a very powerful lawyer working for the U.S. Congress before his retirement a number of years earlier. “What’s the problem with lawyers, Mac?” he said.
“No offense to your brother, Dave,” Mac said. “He’s a good man, and an honest, hard working lawyer. The country could use a few more like him. But the problem is with lawyers as a group. As a group, they are hijacking the way we govern ourselves.
“We’re supposed to be a constitutional democratic republic. But more and more of how we live, how we’re governed, the way we run our economy, and the rules we have to live by are being determined not by the electorate or our representatives, it’s being done in the courts by lawyers and judges and, when juries are involved, all too often by juries, stacked by lawyers, that are rendering questionable verdicts that ultimately affect us all.
“Through the courts, lawyers and those they represent have found a way to bypass the legislative and electoral process. They have become a de facto fourth branch of our government, along with the legislative, executive, and judicial. The result is that we now have policies being wrought by people who are not elected, nor are they appointed by our elected representatives, and there is no mechanism in place to hold them accountable—that is, they can’t be impeached, voted out, or anything similar. Not only that, but the policies they’re creating are not subject to public debate. Yet, as I say, their decisions can affect us all.
“Has it always been this way?” I asked.
“No, this is a relatively recent development.”
“Then how did it come about?” Dave asked.
“Well, in almost every country, this one included, and in almost all other times, the loser in a civil lawsuit has been obligated to compensate the winner. But in this country, in the last half century, this policy changed. You can sue someone, or a large corporation, or a government agency, with relative impunity. When you lose, you lose little or nothing. But when you win, the gains can be substantial. It’s turned what should be a fair contest between the plaintiff and defendant into a lottery system for plaintiffs and, by extension, the lawyers who defend them.”
“But if you sue someone like me, you’re not going to get much,” I said.
“When individuals are sued for large amounts of money, it’s almost always because there’s an insurance company involved.”
“What changed the policy of losers not paying?” Dave asked.
“The change was encouraged by social activists, bureaucrats, and lawyers. Social activists liked the change because they wanted to dismantle the system we live under, which they regarded as ‘unfair’— even though the “unfair” system had made this country the richest on earth. Bureaucrats liked the change because they very often became the stewards of the new laws and regulations brought about by the lawsuits, thereby increasing their power bases. Lawyers liked the change because by making suits almost risk free to the plaintiffs, any plaintiffs — even those who any rational person would say had no case — it stirred up business and made the lawyers richer. ”
“What do you mean ‘any rational person would say they had no case?'” Dave asked. “Can you give an example?”
“Several. Take tobacco, which, by the way, is a legal product. A guy smokes three packs a day for 30 years. That means that at least 60 times a day he handles a cigarette package. That’s 420 times a week, 153,300 times a year, or more than four and half million times in 30 years. He gets lung cancer. It says right on the package that smoking is hazardous to your health. It’s all over the news that smoking is hazardous. Even the guy’s doctor has probably been telling him to quit. But the guy’s got some tobacco company in court blaming it for something he’s done to himself, and he’s suing for millions. With rational people on the jury the chances of the plaintiff succeeding in such a case is slim. But through a process called voir dire, in which lawyers get to screen the jurors, they make it a point to eliminate as many clear headed people as possible. In suits such as that, lawyers don’t want people who believe in individual responsibility on the jury. In fact, if they had their way, they’d stack the juries with no-smoking activists.”
“But smoking isn’t good for you,” I countered.
“It’s terrible for you,” Mac said. “But that’s beside the point. If a person wants to smoke, box, skydive, or climb mountains—all risky ventures—it’s his or her business.”
“Okay, I’ll grant you that,” I said, “but to be fair, you’ve got to admit that, just like the plaintiffs, the tobacco companies want to find people already prejudiced in favor of them, too.”
“That’s right. So where does that leave people like you and me?”
“What do you mean?” I asked.
“I think I see it,” Dave said. “The jury system isn’t there for just the plaintiffs and defendants, it’s there for society as a whole. And letting plaintiffs and defendants control who gets on a jury, when the verdict may affect us all, is undermining the system.”
I looked at Mac to see if what Dave had said was what he meant.
He nodded and said, “That’s the way I see it.”
Dave said, “I’ve read that law firms actually subscribe to studies that help them to identify sympathetic jurors.”
“They do,” Mac said. “They’re paying big money to learn how to deliberately stack juries, and no one says ‘boo’ about it. But, as you just said, the juries are not supposed to be there for just those in the courtroom at the moment, in particular the lawyers. They’re there for all of us: plaintiffs, defendants, the lawyers, and the man on the street, all of whom are affected by the verdicts rendered.
“Nowadays, we have lawyers hijacking the system in all kinds of cases, not just smoking. There are suits against fast food chains, because after decades of eating greasy, low fiber foods, some twinkie develops heart or intestinal problems. And the outcomes have the potential of affecting all of us.”
Dave said, “It seems as though these trials and their verdicts are about money, and it’s the out-of-this-world awards juries are rendering that cause insurance and consumer prices to skyrocket. Perhaps a solution to this is to put a cap on awards?” Dave asked.
“No,” Mac replied. “I don’t want restraints put on the juries. If I were asked to provide a solution I’d say just don’t allow lawyers to stack juries anymore and couple that with ensuring consequences to plaintiffs if they lose.”
“Consequences?” I asked.
“Like I said before, in most of the rest of the world, if you sue someone and lose, you have to compensate the defendant for the costs you have imposed on him to defend himself. You have to cough up some money to ‘make the defendant whole again,’ as they say. This is one of the few countries where that’s different.”
“And say again why it’s not that way here?” I asked.
“It used to be,” Mac said, “but the change came about, supposedly, to create some kind of justice for the poor. But, in reality, it created a lottery system for lawyers.”
“Isn’t that the rationale for these large awards that they keep giant corporations in line?” I asked.
“Sure, there’s an argument that claims that making the filing of all these lawsuits easy makes corporations, as well as individuals — those with lots of money — behave more carefully. But it’s never mentioned that by not having consequences for the plaintiffs it has removed the restraints that also made plaintiffs and their lawyers behave more carefully. And never mind that it imposes enormous costs on those who have been behaving carefully but got sued anyway.”
“What do you mean?” Dave asked.
“Nuisance suits are often settled out of court because it’s cheaper to settle them than to fight, even when you’re right. Fight them and win, you lose money; fight them and lose, you lose even more money. But settle them out of court, even if you were sure you were going to win, and you lose the least amount of money. It creates a lose-lose-lose situation for defendants. And when those defendants are corporations, doctors, municipalities, or whatever, those losses have to be passed on to the consumer or the taxpayer. There would be far, far fewer nuisance suits if plaintiffs realized they ran a risk by filing them.”
“Why would someone concede a case when they’re right?” I asked.
“It’s one of our society’s ironies that many suits that have no valid basis still become incredibly profitable for plaintiffs and their lawyers.”
“But how?” I asked.
“Because the plaintiff doesn’t have to pick up any of the defendant’s costs when the defendant wins, the suits can be brought with impunity and it is often cheaper for the defendant to settle the suit than to defend himself, even though it’s clear the defendant would win.”
“But that still doesn’t make sense,” I said.
“It doesn’t? What if the plaintiff is suing for $10 million and the defendant realizes he’s going to spend a quarter of a million on lawyers, lost time, and what not just to wage the battle. But he can “settle” the suit for $100,000. What’s the smart thing to do?
“And keep in mind, even if he’s not to blame the defendant can still lose. That’s what happened in the Dow Corning breast implant litigation. Almost unanimously, the scientific community knew that breast implants didn’t cause cancer or anything else they were alleged to have caused. But Dow lost anyway, filed bankruptcy, and lawyers got rich. The implants became even more regulated, not because they were dangerous, but because a bunch of handpicked jurors arrived at an erroneous verdict.”
“Couldn’t Dow have appealed?”
“On what basis? Jury verdicts can’t be reversed on the basis that the jurors were stupid. They can only be reversed for procedural errors or if the jury can somehow be shown as corrupt.”
“So, you’re saying we’re stuck because lawyers are allowed to handpick the juries and there are no consequences when the plaintiff loses,” Dave said.
Mac nodded. “For the illusion that we are going to make potential defendants act more carefully, we have made it certain that lawyers and their potential plaintiffs act more recklessly. And because these costs are ultimately absorbed by the consumer, it’s society who pays.”
“Well, our society is so large that, with the costs spread all around, it can’t cost any one individual that much,” I said.
“Because of the ease with which lawsuits can be filed, and the enormous awards granted by handpicked juries, the annual cost of liability runs to over $700 per person in this country. That adds almost $3,000 to the annual cost of living for a family of four because the cost for that insurance has to be passed on to the consumer. And, ironically, they’re also the very people who make up juries. Show me a middle income family that couldn’t use that $3,000 a year for housing, retirement, a car, or something else.”
“That much, huh?” Dave asked.
“Yeah,” Mac replied.
“There are other consequences,” he added. “While we’re saying these suits make corporations more honest, the irony is that the ease with which lawsuits can be brought have increased dishonesty, not decreased it.”
“How’s that?” Dave asked.
“Let me ask you this: When someone applies for a job here at the magazine, do you call the former employer to ask for a recommendation?”
“Oh, I see where this is going. I don’t because I already know employers are afraid to give a bad recommendation, even if it’s deserved, because they’re afraid of being sued by the applicant, then having to settle the suit out of court because it’s too expensive to fight. It’s just money down the tubes.”
“It’s more than money,” Mac said. “People die because incompetents are put into positions where they may have been excluded on the word of a former employer. For example, if a hospital fires a doctor for incompetence, his reputation is not likely to follow him to his next job because the previous employer is afraid of liability if he provides an honest evaluation to the next potential employer.”
“And that,” Dave said, “is because it costs money to defend yourself if a lawsuit is brought by that doctor, even if he or she really is incompetent, because the doctor doesn’t have to compensate the employer who had justly fired him when he loses his case in court.”
“That’s right. And it gets worse. Even murderers have been able to continue their wanton ways, when the word of a former employer could have prevented them from being hired into new jobs where they ultimately killed more people. The most recent case is one of a male nurse who now stands accused of murder, who went from one hospital to another and left many of them under clouds of suspicion. But no one dared accuse him or give warning to future employers because they were afraid of litigation. So, people had to die because we have rigged the system so the price of honesty is too high.
“And, in spite of the so called Good Samaritan laws enacted in most states, we still have cases where many doctors and nurses drive by auto accidents, where they might have been able to render critical lifesaving care, because of the threat of a lawyer who might make what they did appear negligent…”
“…to a handpicked jury,” Dave said.
Mac nodded in his direction. “…it could ruin his life and his family’s welfare.”
“Has it actually happened?”
“Yes. And what’s funny is that there are doctors who have stopped for, say, an automobile accident, anyway, and saved a life, but instead of getting a pat on the back, they get warnings from their colleagues saying stopping was a stupid thing to do.
“So, imagine this the next time you see an auto accident, or you or a family member or friend are involved in one: the man or woman who could save your life may drive right on by because of the threat of litigation.”
“Aren’t there doctors who are giving up their practices because the cost of liability insurance is too steep?” Dave asked.
“Sure. But it’s not the insurance that’s unmanageable, but the legal system. Think about it.”
“So, once again, what you’re saying is that if there were some risk to the plaintiff, there would be fewer frivolous suits,” Dave said. “And if lawyers had fewer opportunities to stack the juries, there would be fewer unreasonable awards. And medical costs would have a better chance of coming back into line,” he added.
“Wouldn’t they? I mean, aren’t those insurance costs passed on to the patients?”
“Of course they are.”
“And you think random juries would be part of the fix for what’s wrong,” I said.
“Yes. Let me ask you this, would you find it acceptable if only environmentalists, or gun owners, or Catholics, or Baptists were allowed to vote?” Mac asked me.
“I don’t think that would be very good for the democratic system,” I replied.
“Then why is it the American people think it’s okay for lawyers to load up juries with prejudiced people who are, in essence, creating policy?”
“If you want even more irony, voir dire, the practice by which lawyers filter jurors, is supposedly to get prejudiced jurors off the jury. But the fact is it’s used to get as many jurors prejudiced toward your side as possible on the jury. No lawyer in his right mind would eliminate a juror he thinks may be prejudiced in favor of his client’s cause or allow a juror prejudiced toward the other side to remain on the jury. He could probably be disbarred for doing either. What he wants are as many favorable jurors he can seat. He doesn’t even want impartial jurors.”
“Couldn’t we just make it illegal for lawyers to choose prejudiced juries?” I asked.
“Supposedly, it is,” Mac replied. “For example, the U.S. Supreme Court has instructed lawyers not to employ race or sex as a factor in jury selection because someone may lean a certain way because of his or her race or gender. But that hasn’t stopped lawyers from doing just that because edicts like that are almost impossible to enforce given that lawyers don’t have to give any justification for knocking someone off a jury beyond saying they made their choices based on a hunch or an intuition. And the funny thing is, lawyers feel they are the only ones allowed to use such explanations for making their choices.”
“What do you mean?” Dave asked.
“Well, imagine what a field day a lawyer would have with an employer or landlord who started turning down tenants, new hires, or even handing out raises on the same basis. If subsequently accused in a suit of discrimination, such an employer or landlord would be excoriated by the plaintiff’s lawyer, and that defendant would probably lose the suit.”
“I see,” Dave said. “Lawyers feel what’s good for the goose isn’t necessarily good for the gander.”
“And what’s even more ironic is that after a huge award, lawyers tell us we should trust a jury’s decision. But the lawyers themselves don’t trust juries. That’s why they try to stack them.”
“You know, I never looked at this stuff this way,” I said.
“Sum up the solution,” Dave said.
“Make losing plaintiffs compensate the defendants, and stop allowing the lawyers to stack our juries,” Mac said.
“Juries aren’t just there for the defendant and the plaintiff, they’re there to represent all of us. We can’t have lawyers making policy for us with handpicked juries meant just to benefit them.
“And then there’s one more thing,” he added. “We have to make it harder for anyone to get out of jury duty. We need a true cross-section of people of juries, not just those who can’t figure out how to get out of jury duty.”
Dave was serving himself more of the soup. “What’s the biggest obstacle to solving the problem?” he asked.
“There are two,” Mac replied. “The first is that most people don’t even see it as a problem, despite its costs to each and every one of us. Tell people ‘lawyers are a problem,’ and they either nod or prepare themselves to hear a lawyer joke.
“The other is that lawyers constitute the largest and most powerful lobby in Washington, bigger and more powerful than the lobbies for unions, teachers, bigger than the gun or antigun lobbies, bigger than any corporate lobbies, or even lobbies representing foreign governments looking for favors. And keep in mind that the overwhelming majority of those serving in Congress are lawyers. They have no incentive to change things.”
“So how can change be brought about?” Dave asked. “Sounds like the deck is stacked against the rest of us.”
“It is, but it can be done,” Mac said. “But first it takes a recognition by more people that there is a serious problem with the way this aspect of the legal system works. Once the recognition is there, the American populace must demand change from the mostly lawyers who populate Congress. It’s an uphill battle, but Americans have been there before.”
“Hey,” Dave asked, “can we have the recipe for this soup to give to our readers?”
“Sure,” Mac said as I got up to get another bowl myself.
Mac’s chicken soup with split peas and lentils
5 cups chicken stock
2 cups vegetable stock
4 chicken thighs, boneless and skinless, cubed
1 large onion, diced
1 large carrot, peeled and sliced thin
2 stalks celery, sliced thin
½ cup red lentils
¼ cup pearl barley
1 cup split yellow peas
¼ cup brown rice
¼ cup wild rice
¼ cup parsley
1-½ tsp. Italian seasoning
1 bay leaf
salt, to taste
fresh ground black pepper, to taste
¼ tsp. cayenne pepper
¼ cup short grain white rice
8 medium-size white mushrooms, quartered
4 or more cloves of garlic, minced
Combine all but the last three ingredients in a large pot. Bring to a boil, then lower the heat to a simmer and let it cook for about an hour, stirring regularly to keep it from catching on the bottom of the pot. If it gets too thick, add some water or more stock. When the peas and lentils are cooked, add the white rice, mushrooms, and garlic and let cook another 25 minutes. Remove the bay leaf and serve.