Lawyers, Fruit Flies and Rotting Mangoes
Jay B. Gaskill
No other developed country in the world has given its legal class so much obstructionist power, especially as to those areas of life where most people, most of the time are simply allowed to take reasonable (or unreasonable risks) and to bear the consequences of their own foolishness. This point came home to me a few years ago when, in New Zealand, a horde of tourists were ushered in the dark around an impossibly low railing, a single metal bar separating them from a deadly and deafening cataract of water below. “Take care,” the Kiwi guide said, “and don’t slip. You Yanks don’t get sue here like you do at home.”
There was something refreshingly Darwinian about that admonition and what it implied about the healthy Kiwi culture. Actually, the infamous propensity of Americans to sue excessively and the resulting risk-averse “nanny” culture the lawyers have helped create is not really the product of the large number of lawyers employed in the US. The lawsuits and the lawyers are themselves byproducts of something else; I call it the large number of rotting mangoes, a metaphor I will soon explain. Consider: There is no constitutional or God-given right to sue anyone for negligence or for almost any other cause. Lawsuits arise from what we legal scholars call a “cause of action.” Granted, there were a few basic causes of action inherited from the British Common Law when the American Republic was born, but they were both few and basic. Generally speaking, lawyers didn’t run peoples’ lives at work and at play in the days of Jefferson, Washington, and Adams. For that matter, the situation hadn’t gotten out of hand as late as the Eisenhower years.
Also consider: There is no constitutional or God-given right that a lawyer will be generously compensated for merely filing and pursuing a lawsuit. Rotting mangoes are the causes of action and guaranteed generous legal fees that have fueled the lawyers’ takeover of the country. All this has taken place right under our noses in less than a half century. Today, lawyers swarm to any exploitable crack in the power structure of society like fruit flies to a barrel of decaying mangos. It isn’t their fault, any more than a fly can be blamed for following the smell of rotting fruit, a cat for chasing a mouse, or a dog for chasing a cat.
It’s in the DNA.
Today, most lawyers, most of the time, are motivated by money. But it’s worth remembering that in the beginning of the “Lawsuit Revolution” many were driven by causes. It should be noted that this can only happen on a large scale in any given society when there are a number of lawyers who are comfortably supported by others. Once these lawyers are given minimal financial support, we should ever underestimate the lure of peer group recognition, especially in movements filled with impressionable, young, and — dare we say it — nubile admirers. [“The pursuit of movement ‘nookie’”, as one sage of the 60’s said, “was more valuable than money.” He then added,” It helps if you’re still in your thirties.”]
But after time, the revolutionary enthusiasm fades and the lure of money resumes its dominant place. Enter the rotting mangoes. To exploit all this untapped fruit-fly energy, lawmakers and appellate courts have scattered barrels of rotting mangoes all over the place. The generous legal fees to be awarded to the winners have two primary functions: To pay back their trial lawyer supporters and to keep the game going. How long has this particular game been afoot?
This development came about when fiscal pressures and the tax revolt of the middle class in the early eighties began to divert government-spending resources that had been used to reward supporters and constituents. In this new environment, the “benevolent government” vote-buying machine was less and less able to please its special interest constituencies via direct appropriations. The political economy was revived by substituting regulation changes that benefited the same constituencies. As that well began to run dry, private lawsuits were indirectly subsidized. More “public interest” lawsuits were authorized and large legal fee awards were made mandatory, all to be paid out of the “deep pocket” defendants. As time passed, a three-headed constituency emerged: the putative victims whose compensation was the ostensible purpose of the newly authorized and funded lawsuits; the trial lawyers themselves who often received the largest share of the compensation; the cheering spectators for whom the very David vs. Goliath spectacle became a sort of feel-good payback for backing the political leaders who thought of the mango game in the first place.
The Shakedown Scenario
In the American union movement there once was a golden era in the early days when real grievances were addressed and redressed. Those who struggled on behalf of the aggrieved in those days did honest work for reasonable compensation. It was much the same for the American lawsuit revolution. At first, few lawyers were well compensated and no lawyers were getting rich. Enter the big players, the mango harvesters. A new industry was born. Suddenly the victims were kept backstage except when they needed to be trotted out as props.
The real money? That increasingly went to the trial lawyers and their hired experts. Some of these modern plaintiff’s legal teams routinely do shakedowns, all in “the public interest”. Here’s how the scam works: There is almost never a real penalty for filing and pursuing a meritless lawsuit, as long as you have a real victim with real injuries– except the risk that the plaintiff’s lawyers might not be compensated. The practice of being ordered to reimburse all or some of the costs of defense if you prosecute a meritless, needless or frivolous lawsuit was long ago discontinued. The theory was that to require that would unduly punish the hapless victims who had consented to let the lawyers have “a go” at it. In practice, even the most flaky, shaky claim has a substantial “settlement” value (read shakedown value) because there is no strong rule scaling back to awarded attorneys’ fees to be commensurate with a small, symbolic plaintiff’s recovery. So the party sued must always consider the real possibility of an outcome in which a sympathetic court or jury gives the plaintiff a thousand dollars in compensation (considered a defense victory) but the court awards plaintiff’s attorneys $200,000. This sets up a bargaining session in which the plaintiff can claim that any settlement in the range of two hundred K is a defense victory. Gun-shy insurance carriers and corporations routinely shell out these and larger sumes for baseless lawsuits, grateful not to have to pay their own attorneys ever more should the case go to trial. Think of it: An almost meritless case may well be worth a half-million dollars just because most judges, most of the time, are powerless (or unwilling) to end the case without a trial.
The EEOC in theory and in practice
The federal agency charged with the responsibility of enforcing “discrimination” claims, the Equal Economic Opportunity Commission, has always operated independently of direct executive or congressional supervision. It was originally created by the Civil Rights Act of 1964 and its brief was limited at first to substantial cases involving racial discrimination.
More recently, the EEOC acquired the power to enforce the ADA (Americans With Disabilities Act of 1990), preventing employers from ”discriminating” against the disabled, a category that has been expanded beyond the wildest dreams of that measure’s authors. For example, a purely mental disability is now a protected category. As I describe in the Appendix, lawyers have even attempted to promote kleptomania as an ADA disability.
The EEOC has the authority to bring discrimination claims directly or, more commonly, to issue a Permission Letter to prospective litigants, thus allowing a private lawsuit. This latter step is taken almost reflexively. The outcome is that a number of marginal claims are pursued against deep pocket defendants. Large settlements are obtained using high attorney fees as leverage, because the fees need only be justified by the claimed hours expended in the cause, not by any reasonable relationship to the prospective recovery. Because courts often award token damages for aggrieved employees (who really weren’t the victims of invidious discrimination), defendant employers are wide open to six-figure judgments predicated on token damages. The process amounts, in many instances, to a legally sanctioned shakedown.
The Necessary Reforms
We voters and constituents made this problem, and we can fix it. There is no constitutional or God-given right to sue anyone for negligence or for almost any other cause and there is no constitutional right that a lawyer must be generously compensated for merely filing and pursuing a lawsuit.
Three simple reforms will go a long way to curbing the current abuses:
(1) Plaintiffs should no longer recover court-awarded attorney’s fees (even in EEOC sanctioned cases) except as a fraction (not to exceed 40 percent) of the recovery paid to the client(s) as compensation for their injuries. [Court awarded or sanctioned legal fees should never be tied to punitive damages.]
(2) We should carefully control court-awarded legal fees in all private class action cases; they should be capped (by law) to discourage corporate shakedowns, and must be separately justified based on the reasonable and customary hourly rates for efforts actually expended in the lawsuit. [Effective regulation of private class action legal fees presents several difficult technical problems.]
(3) In all cases, the losing plaintiff should be liable to pay the attorney’s fees of the defendant. Judges should be required to rate plaintiff’s cases before trial. If a case is determined to be “insubstantial” and represents a “reasonable likelihood” of a defense verdict of a recovery well below the costs of attorneys’ fees, the plaintiff’s must post a bond to ensure the reimbursement of the defendant’s fees, in the event of a defense victory.
Many of these reforms can be enacted on a state-by-state basis, while others will require an act of Congress. But wherever these reforms are in place, you can be assured that commerce and tax revenues will improve. And we will have made the first step in our recovery from a litigation-infatuated culture. Not every problem in life can – or should – be cured by a lawsuit. Measure (3) alone can have a dramatic effect in curbing excessive litigation.
When the rotting mangoes are dried up, the fruit flies will go away.
Rampant Word Mutation
That Judicial – Lawyer Game
Starting with very general language, lawyers and judges are able to build an entire thriving mango fruit fly Industry. Word mutation is their secret weapon. This is why contracts written by lawyers are so long: Protection against word mutation requires more — you guessed it — words.
When the word mutation process is driven by a regulatory agency that is essentially outside of the direct control of the congress and the executive branch, the mutation accelerates at the rate of a metastatic cancer.
The following examples, all relating to “discrimination” cases, are cited to illustrate just how complicated and daunting any attempt at detailed reform can seem to a member of congress or the legislature.
Hence the attraction of my proposed approach:
We need to curb the occasions for easy attorney fees on marginal cases in order to starve the cancer. Eventual surgery will be needed, but let’s first stop the metastasis.
IN THE BEGINNING…
In the beginning there was the 1964 Civil Rights Act, Title VII of which made it an–
“unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
Few would quarrel with the general concept.
Then in 1972, Congress passed the Equal Employment Opportunity Act, giving the EEOC authority to enforce Title VII. In a stroke of legislative genius (or neglect, depending on your point of view), the regulation of sexual discrimination, including what was to become the new notion of “sexual harassment”, was the province of an agency that was allowed to operate wholly outside the supervision of the executive and legislative branches of government.
Not everyone realizes that the legal doctrine of “sexual “harassment” in all its now-familiar forms was not directly ordained by Congress. It was not spelled out in the very general language of 1964 Civil Right’s Act nor by any other Act of Congress for that matter. It came about via a through-the-backdoor development of word mutation. The inclusion of the word “sex” in the section regulating employment discrimination was the scaffolding upon which an entire edifice of “sexual harassment” rules was erected by the EEOC with the help of the lawyers and the courts.
By 1986, Justice Rhenquist, the US Supreme Court’s leading conservative, was able to write (in the majority opinion in the case of Meritor Savings Bank vs. Vinson 477 U.S. 57) that the language you have just read above meant that a bank could be held liable for the sexual harassment claimed against one of its managers even where the lower court could not resolve the conflicting testimony and therefore could not determine whether any harassment had taken place.
Speaking for the Supreme Court, Rhenquist wrote: “In sum, we hold that a claim of ‘hostile environment’ sex discrimination is actionable under Title VII, that the District Court’s findings were insufficient to dispose of respondent’s hostile environment claim.” In plain English, the Supreme Court held that the complainant had failed to convince the lower court that the bank manager had “made any sexual advances toward [her] at all, let alone whether those advances were unwelcome” but allowed the lawsuit to go on anyway.
Note that the 1964 Act allows the award of attorneys’ fees against the employer without providing for the reverse should the claimant fail to prove the case.
“(k) In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.”
So the Supreme Court knew in the bank case above that the entire legal exercise was going to be paid for by the bank. This was the mango principle in operation.
But the mangoes weren’t quite ripe enough. In 1991, the Civil Right Act was amended by Congress to allow for the payment of expert witness fees as part of the attorney’s fees award:
“SEC. 113 (c) In awarding an attorney’s fee under subsection (b) in any action or proceeding to enforce … the court, in its discretion, may include expert fees as part of the attorney’s fee.”
And just in case there weren’t enough rotting mangoes, there was a provision for punitive damages was well in certain cases.
“[T]he complaining party may recover compensatory and punitive damages as allowed in subsection (b), in addition to any relief authorized by section 706(g).”
Among the legal innovations captive to the emergent “let’s-find-a-victim-and-sue” mindset was the “ADA”, The Americans Disability Act of 1990. The Act forbids discrimination against the “disabled” but fails to provide an adequately detailed definition of disability:
“The term ‘disability’ means, with respect to an individual-(A) a physical or mental impairment that substantially limits one or of the major life activities of such individual; (B) a record of having such an impairment; or (C) being regarded as having such an impairment.”
Congress left the details, including the question of what is or is not the required “reasonable accommodation”, for administrative agencies and court procedures to flesh out. After a few years of misuse by the trial lawyers, some wags began referring to the ADA as the Aggrieved Disgruntled Americans Act.
Epithets aside, the ADA is a classic good idea gone afoul. Few object to the ramps and lifts, but the ADA’s intrusion in hiring, transfers, promotions and firings was made to order for abuse by trial lawyers. It was and is a mango swamp.
Flash forward a decade and we find that the ADA’s laudable ends have been distorted to protect performance-impairing afflictions. Lawyers have argued the need to accommodate drug addition. In a bizarre legal twist, current drug use of illegal drugs is not a disability under the Act, but someone who is currently in rehab and not now using may claim drug related disability. Do I need to note that some illegal drugs cause brain damage?
Lawyers have argued – with some success – that even kleptomania, schizophrenia, and other mental (or moral) maladies are to be accommodated under the Act. One suspects that everything really can be accommodated, except violations of the rules of political correctness itself.
ADA accommodated disability apparently now includes common stupidity. The legal term — euphemism — is “mental disability.” The stories documenting employee abuse of the disability clause would fill a bookshelf.
A singularly irritating example is that of the California supermarket manager who was given leave because of his angry abuse of employees and customers, then referred by the employer to an Employee Assistance Program (EAP) expert. The EAP person then reported that the angry manager suffered a “stress” disability – “Organic Mental Syndrome”. When the manager’s leave was fully exhausted and the supermarket learned he had started a new business on his own, he was finally let go.
But the rotting mangoes will not be denied. The fired manager sued under the ADA. When he admitted on examination that he’d been malingering, his case was dismissed. In a rational world, the matter would never have gotten that far. But in our world, the “Lawyers-can-sue-for-anything-World”, the manager appealed. And the appeal was successful. The admittedly malingering manager got his lawsuit reinstated because the employer’s kindness in referring him to EAP meant that he was “regarded” as being disabled. It seems that victim status is so important that you don’t actually have to be one – mere appearances will do. Such is the power of rotting mangoes and fruit flies.
Of course, there is a real ADA case that strongly resembles the “Organic Mental Syndrome” scenario I’ve just described. It was decided in the 9th Circuit Court of Appeal. I’ve elected not to name the employer or claimant. But my example is very typical of the problems created by legislation and its development as part of the “Lawsuit Revolution”.
No The Congress Wasn’t Completely Crazy:
Title VII of the 1964 Civil rights Act outlawed sexual discrimination, using the familiar language forbidding discrimination based on “race, color, religion, sex, or national origin.”
When Congress assigned to the EEOC the task of applying and interpreting sexual discrimination and harassment in the workplace, without providing adequate guidance as to the conduct that can and cannot be proscribed, the Congress wisely exempted itself from the jurisdiction of the EEOC.
Copyright 2006 by Jay B. Gaskill
For reprint permission, contact via the email link on the “Policy Think Site”. www.jaygaskill.com