Litigation Society?

I enjoy picking up the Outlook section of The Washington Post on Sunday’s to read George Will. I rarely agree with him. But I’m always impressed with his writing and analysis.

Sunday’s article offers thoughts on a topic that is obviously near and dear to my heart: litigation. George Will is a little bit less impressive when you actually know something about the topic he is writing about in his column.
For example, Will says that a “nation in which the proportion of lawyers in the workforce almost doubled between 1970 and 2000 has become ludicrously dense with laws.” That makes sense I’m sure to Joe the Plumber. (Random hysterical footnote: he is now a war correspondent in Gaza for PajamasTV.) But it is also painfully wrong and misleading to readers. The reality is that the law in 2009 is far more advantageous to defendants in tort claims than it was in 1970, which is the focus of the article.

Will also claims that Long Beach, N.J. removed signs warning swimmers about riptides because the warning increased their liability. Then he cites silly warnings in place for fish hooks and letter openers. Which one is it? Do companies take down warning signs because it increases the possibility of liability or do companies place needless warnings on their products? The former is nonsense; the latter is silly but largely harmless in most cases. But should we reward overreacting with sympathy?

Will’s article strikes a cord with Americans for a reason: our overly litigious society is indicia of a problem we have in this country: the refusal to take responsibility. I say “this country” because everyone says it that way. But what country at any time in human history was known as the big “take responsibility” country? Human beings have been human beings for quite some time now.

But I agree with the premise: we have too many foolish lawsuits, often in accident and product liability/consumer cases. If you don’t believe me, check out the website Overlawyered which regularly chronicles the insanity. If you are a personal injury lawyer and you don’t believe this, you have had way too much of the PI lawyers Kool-Aid.

So, certainly, Will proposes a solution. Actually, no, the article is just a griping session about where we are as a society. (I was waiting for the phrase “the good ole days.”) I think the reason there is no proposed solution is it is difficult to craft a solution to limit lawsuit without the byproduct of people or companies who have seriously injured human beings escaping responsibility.

Herein lies the rub: the door swings both ways for plaintiffs and people and corporations accused of negligence: no one wants to take responsibility. People who are victims that are not the result of negligence want to blame someone who is not negligent. Defendants who have, through negligence, seriously injured someone often (read: usually) seek to avoid full or even partial responsibility.

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