Peter Pringle's America: Lawyers on a slippery slope

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The Independent Online
IN WASHINGTON DC, when it snows as it did during the Great Blizzard of 1993, children are not allowed to toboggan down the majestic slopes in front of the Capitol. The reason for the rule is not, as one might have imagined, respect for the Congress of the United States nor for the decorum of the splendid grounds. It is that the US government is afraid of lawsuits.

'You see,' explained the friendly policeman who ordered us to cease sledging, 'your children might hit one of the fir trees on the run down the hill and then you might sue the government.'

'But,' I stammered, 'Russian children slide down the slopes in front of the Kremlin walls all winter long and the stern guards never interfere, and in any event it would be the parents' fault if injuries occurred, wouldn't it? I mean, we are in charge of the children.'

'Well,' said the policeman, 'your lawyer might not see it quite that way.'

In this most litigious of nations, with nearly a million lawyers, it is never enough to make parents responsible for their children, a person responsible for his bad habits or a corporation for its products. Whether it is governmental, corporate, parental or personal responsibility that is at issue, there is always room for litigation. The result is a healthy, and growing, disrespect for the overreaching activities of some people in the legal profession and the emerging prominence of organisations that fight lawyer proliferation with titles such as 'Help Abolish Legal Tyranny'.

If last year is anything to go by, 19 million civil suits will be filed in 1993 - the same number as there are criminal prosecutions. One that has reached new heights of absurdity is the case of the country's all-time worst blackjack player, Leonard Tose. He sued the casinos where he lost his millions because, he claimed, they plied him with free drinks, impaired his judgement and forced him to gamble away his considerable fortune.

After hearing the lawyer's sober arguments, the judge declared that casinos were indeed liable if they allowed a 'visibly and obviously intoxicated' gambler to continue at the tables. Mr Tose is using this ruling to pursue his case.

Citizens who are not themselves bringing suits - and they are still in a majority - are in a permanent state of revolt against the lawyers who spend time on such cases and drive upward the already monstrous costs of virtually any serious transaction. The public reaction is to take business away from lawyers altogether.

Instead of going to court, more and more civil cases are being heard in private rooms where the parties sit round a table with the retired judge of their choice. There they get speedier decisions, reduce the uncertainty of a jury trial - and keep their legal bills down.

It's called mediation, as distinct from the more traditional arbitration procedures which are binding and where one side still wins. In mediation, the parties look for a more flexible approach, where they can pick their own judges, write their own rules, and do without banks of expensive lawyers.

Pick up any American legal journal these days and it is likely to have several pages where former judges are offering private mediation of disputes for between dollars 100 and dollars 400 an hour. The judges often include small biographies of themselves complete with details of hobbies, suggesting that the negotiations could be concluded on the golf course if the parties so desired.

Even at dollars 400 an hour, companies are saving millions of dollars. An electricity company was sued by the owner of a helicopter that crashed into its power lines. If the case had gone through the courts it would have taken two years and cost at least half a million dollars in legal fees, but through private mediation it was settled in 10 months at a cost of dollars 20,000.

The terms of the settlement were confidential, which is another attraction for large companies. But private law leaves a big hole in the public law records. If the growth of private mediation really takes off, as lawyers expect it to, the public will forfeit legal precedents that are the backbone of the justice system. Also, because the disputes are in private, the public may never get to hear about defective products which might be the cause of suit.

The lawyers stand to lose briefcases full of money, which is making them nervous, but even average advocates are inventive enough to concoct schemes to keep the public in their grip.

Soliciting for business is no longer considered undignified or unethical. Young corporate lawyers these days are being sent to 'boot camp' to learn how to peddle their services. For a mere dollars 24,000, a lawyer can spend three days at a hotel learning tricks of salesmanship discovered centuries ago.

They are told: don't be so arrogant, listen to your client instead of talking at him all the time, maintain eye contact at least two-thirds of the time, and do not cover the mouth during sales pitches as 'it connotes mistrust'.

Perhaps the cheekiest scheme for overcoming the profession's bad times is proposed by a Massachusetts lawyer named Milton Bordwin. He advises lawyers to promote themselves as doctors and engage in 'preventive law'. Every small company, he suggests, needs a lawyer permanently on hand to define problems even before they come up.

Mr Bordwin is on to something, I'm sure. It will not take long for American parents to understand that having a live-in legal nanny is the only way for the children to be sure their leisure rights are not abused.

If I had a lawyer, the civil suit Pringle v US Government, re: Unreasonable and Unusual Interruption of Children's Sunday Afternoon Leisure Time' would already be in the courts. As my lawyer would undoubtedly be arguing, the government provides no reasonable alternative to the Capitol slopes in the immediate vicinity of the Houses of Congress.