Congress is once again considering legislation to penalize lawyers who repeatedly file frivilous law suits. Never mind that the Judicial Conference of the United States opposes the legislation. Lawmakers think such legislation will make the world safer for business people.
Forget for a moment the obvious commerce clause and federalism issues. Let's focus on the policy concerns.
Lawyers are professional combatants. We operate by settled rules of procedure and evidence. The disputes we wage come in recognizable forms reined in by doctrine and precedent. Sure, lawyers test the limits and boundaries of every issue. But we do so on behalf of clients with complaints.
Does Congress really think that punishing lawyers will yield fewer lawsuits? Are lawyers whipping up cartloads of angry people and dumping them on courthouse steps?
One consequence of the legislation would be that lawyers would take fewer cases pressing novel legal theories, and would cream-skim, focusing only on clear winners. This will leave many people unrepresented. A hefty percentage of them will file pro se complaints. Expect a boom in self-help books. Hell, I may write one: "How To Be Your Own Civil Rights Lawyer." Chock it full of form pleadings and boilerplate motions, and watch the courts swell with swill as the untutored throw paper they do not understand at everything that moves. One reason the Judicial Conference does not want this new legislation is that the judges are well aware of the fact that a boom in pro se litigation will cripple the system.
The fact is that lawyers, even bad ones, sculpt litigation and transform a dispute from something akin to a slugfest into a conflict that can be resolved on a principled basis. Deterring lawyers from filing claims won't discourage pro se plaintiffs. My hunch is that litigation costs will increase, and not decrease, if the legislation passes.
And what of costs? Sponsors of the bill, including Rep. Lamar Smith, R-Texas, contend that all these bad suits are driving up the cost of doing business. Businesses often settle rather than litigate, it is contended. So let me see if I get this. If we give the money directly to the pro se litigants we will save money. Huh?
Rep. Smith might want to ask questions about costs of defense. I from time to time represent lawyers who are being sued for vexatious litigation or from whom attorney's fees are sought. What I have learned is stunning: Defense counsel routinely generate hundreds, sometimes millions, of dollars of legal fees defending cases they claim are without merit. Question: If the case you are defending is so lousy, why are you spending hundreds, sometimes thousands of hours defending it? Whose butter is getting churned?
From time to time I appear on behalf of pro se clients on the eve of trial. Typically, the cases are hopeless. But I try the case for the client and believe that my role is valuable as the discipline I can impose on the client, and my ability to apply existing law to recalcitrant facts, saves everyone time and expense. The reaction from judges after these cases is usually gratitude, not sanctions. I won't try these cases any longer is the risk is loss of my license.
Lawyers are part counselor, part warrior and part diplomat. I take pride in these roles. Even in a bad case I serve as an officer of the court, doing my best to keep the dispute, and sometimes the disputants, within the limits of the law.
Blaming lawyers for the rise in litigation is sort of like blaming doctors for cancer. There are a lot of angry people out there. They'll go to court by themselves if they can't find a lawyer.