Gavin Esler: Don't let the lawyers make a crisis out of America's political drama

Victim Voters are part of a dismal new American way: a man's gotta sue what a man's gotta sue
Click to follow
The Independent Online

The shambles that is now America's presidential election process demonstrates how far a country founded on the Rule of Law has degenerated into the Rule of Lawyers. Legal challenges to the bizarre voting system in Florida were inevitable. In America's litigious society, a court case over the creaky and outdated way the great superpower considers suitable for the election of a president has long been an accident waiting to happen.

The shambles that is now America's presidential election process demonstrates how far a country founded on the Rule of Law has degenerated into the Rule of Lawyers. Legal challenges to the bizarre voting system in Florida were inevitable. In America's litigious society, a court case over the creaky and outdated way the great superpower considers suitable for the election of a president has long been an accident waiting to happen.

In the Stephen Sondheim song, when something bad happens in the circus, they send in the clowns. In America's political circus, they send in the lawyers.

The broad expanse of K Street in the heart of Washington, DC is known as "Gucci Gulch", inhabited by the best-paid lawyers in the world. Gucci Gulch's $475-an-hour legal gunslingers are now descending upon Florida to help aggrieved citizens seek redress for their inability to punch the correct holes in ballot papers, and other crimes against humanity.

In their battledress of hand-made suits and Gucci loafers, the lawyers for Bush and Gore will quote the US Constitution with all the goggle-eyed enthusiasm of Iranian mullahs reading from the Koran to justify a fatwa against the other side.

Every American trial lawyer learns the old advice about litigation: when the Facts are against you, argue the Law. When the Law is against you, argue the Facts. And when both are against you, then you just argue - which is where the Bush and Gore campaign lawyers are now in their mutual megaphone advocacy.

A few years ago, those voters in Palm Beach County who claim they were disenfranchised by a confusing ballot paper would probably have been too embarrassed to admit they punched the wrong hole in the polling booths. But now, like millions of litigants all over the United States, stupidity, ignorance or misfortune is a passport to Victimhood.

The Victim Voters were Victims of a system that they couldn't understand, and Victims, we will undoubtedly hear, of a conspiracy to steal the election. Florida's Victim Voters fall exactly into the dismal new American tradition exemplified by lawsuits of the 1990s, including the woman who sued McDonald's because she scalded herself with the cup of coffee she placed between her legs while driving.

Once upon a time, America was a self-reliant John Wayne society where a man's gotta do what a man's gotta do. Now, America has become an over-lawyered society where nobody takes responsibility for mistakes because it is more profitable to claim victimhood and reach for a lawyer. The new motto is: a man's gotta sue what a man's gotta sue - in this case, sue the electoral authorities in Florida.

In 1950, there were less than 1,000 lawyers in Washington at the District of Columbia bar. By 1975, Gucci Gulch had exploded to 21,000. By 1993, it was 63,000. There are fewer than 600,000 residents of the US capital, and you may well ask what kind of a society you get when 10 per cent of the capital's population are registered lawyers.

A society in which it is easier to find a lawyer than a plumber. A society in which candidates spend two years and millions of dollars to reach the White House, only to discover that the most important job on earth is being decided in a courtroom not a polling station.

The good news is that Americans loathe lawyers as much as they despise politicians. They joke grimly that lawsuits are like belly buttons. Everybody has one - including, this week, Gore and Bush. There is evidence that the litigation plague is coming to the UK, though there is still a chance to stop its worst effects. But in the US, litigation is a metastasising cancer.

In the late 1970s, there were 250,000 lawyers in the US. By 1991, there were 800,000 - roughly 70 per cent of the lawyers in the entire world. Now there are probably more than a million US lawyers - more lawyers than soldiers in the US Army. In his book The Litigation Explosion, Walter Olson explains that Americans no longer enter into any important transaction - including, this year, voting for a president - without briefing a lawyer.

In 1996, lawyers for a New Mexico couple drew up a pre-nuptial agreement that specified the frequency of sexual relations and the type of petrol to be used in the car. Doctors, dentists and nurses commonly take out malpractice insurance to pay for lawsuits. The trend has expanded to include hairdressers, accountants, vets, sports umpires and members of the clergy, all fearful of being sued for wrongful action or advice. With this election, politicians have at last joined the list.

But the over-lawyered rottenness stretched to the very top even before this shambolic election. The Lawyer in Chief, Bill Clinton, famously disputed under oath a question about his affair with Monica Lewinsky by observing in classic lawyerly double-speak, "That depends on what the meaning of the word 'IS' is."

Mr Clinton famously managed another trick only ever achieved by lawyers. He smoked pot but did not inhale. He even argued that Lewinsky had sex with him, but he, according to the legal definition, did not have sex with her. If the law believes that, then, as Dickens's Mr Bumble observed, the law is an ass, and America's legalistic political process is braying like a herd of asses this week.

Yet, perversely, we should be optimistic, and trust the common-sense of the American people. The US Constitution has absorbed the end of slavery, the Civil War, Civil Rights and Watergate. It will cope with Bush, Gore and their Gucci Gulch hit men. But if Bush is really to be president, then that will depend on what the meaning of the word "IS" is. Questions over his legitimacy mean that Bush could be the first US president to be a lame duck even before he takes office.

Whatever the result, the disgust of ordinary Americans towards lawyers and politicians will increase. They have become the two-headed monster of comedy. One comedian says that doctors have stopped using rats for medical research. They've switched instead to experimenting on lawyers and politicians. Apparently, you never become attached to lawyers and politicians. And there were some things that the rats just would not do.

Gavin Esler presents BBC News24's coverage of the US elections, and is author of 'The United States of Anger'

Comments