New York Law Journal

Lawyers Rule
Review of The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law, by Walter K. Olson. Truman Talley Books/St. Martin's Press, 358 pages, $25.95.
February 24, 2003

by Daniel J. Kornstein

The public role of private lawyers in American society has always been large. Ever since 1803, when Marbury v. Madison gave life to judicial review, any private lawyer in America could sue to challenge the constitutionality of a national law, and, if successful, void the end product of the legislative process. Way back in 1835, Alexis de Tocqueville got it right when he pointed out that most political questions in America end up in court.

This public policy role for private lawyers seems to have grown exponentially, or at least taken new forms, in recent decades. Lawyers have increasingly used litigation to achieve social and economic change. With class actions, mass torts and industry-wide litigation, they have sued large corporations and have often achieved significant results, not always to the liking of those corporations or their defenders.

Such use of litigation to bring about change is controversial, perhaps never more so than now. Some think it is a good thing, made necessary by failure or inactivity by other branches of government. Some think it is a bad thing, creating a self-appointed, unelected fourth branch of government. Reasonable people may differ, which highlights all the more the need for fair and balanced commentary.

This book, unfortunately, does not fill that need. Rather than balanced, "The Rule of Lawyers," by Walter K. Olson, is a polemic, almost a screed, attacking plaintiffs' lawyers relentlessly and with a vengeance. This is not to say that he is entirely wrong on the merits. No one knows better than we lawyers that litigation today does pose serious and unpredictable risks for American business. Huge punitive damage awards can cripple large corporations and force them into bankruptcy. Class actions do have a coercive effect, and often result in large fees for plaintiffs' lawyers without significant settlement value to class members.

To underscore these valid points, Mr. Olson effectively draws on some famous recent cases. He devotes separate chapters to the tobacco, asbestos, gun manufacturer and silicon breast-implant litigations. In each case, Mr. Olson explains that even though the plaintiffs' lawyers' campaigns may have been successful in some senses, they deserve serious criticism. Perhaps the most disturbing example is the silicone breast-implant litigation, which was based on a now medically discredited theory of causation.

Mr. Olson also takes aim at some familiar and much-debated procedural targets. He criticizes the American rule of generally not requiring a losing party to pay the winner's legal fees. He intensely dislikes contingency fees. He thinks judges rather than juries should assess damages, and he is opposed to punitive damages. These are legitimate topics for discussion but are not new, and they are much more open to debate than Mr. Olson lets on.

And that is the basic problem with the book. It has the ring of special interest pleading, as if Mr. Olson were a hired gun or a public relations flak for big business. Conspicuously missing from the book are serious reasonable alternatives for dealing with the problems addressed by plaintiffs' lawyers.

Other than his belief that American corporations and industries should never be sued, it is unclear what Mr. Olson is advocating. Yet his core belief is not so much a thesis as a simplistic and embarrassing defense of corporate America. It ignores the grave wrongs occasionally done by U.S. business that would have gone uncorrected and uncompensated without private litigation. It is this very lack of a coherent, cogent thesis that makes the book a tangle of contradictions.

The deepest confusion in it may be his mixed-up view of the political process. His fundamental point is that plaintiffs' lawyers show a "marked disdain" for that process. "Until very recently," writes Mr. Olson, "it had been thought that a duly elected legislature was in the best position to strike the right balance" on difficult social issues. Now the fights were being transferred to the courtroom. Lawyers, he says, "were winning their victories by getting courts to override the decisions of elected legislatures." According to Mr. Olson, plaintiffs' lawyers "turned to the courts precisely because they did not have a very high expectation of winning a purely democratic fight."

But Mr. Olson displays equal disdain for the political process, without even recognizing his own internal inconsistency. The political process could, if there was enough political support, stop or reform the alleged excesses of the plaintiffs' bar. "For twenty years," notes Mr. Olson "there has been talk of action in Washington to reform the excesses of the liability system and rein in the power of trial lawyers." Yet failure to do so is itself a significant political act, which he doesn't acknowledge.

Mr. Olson then goes on, with bizarre illogic, to blame lawyers for their success in achieving political results. He complains about the political influence of trial lawyers, what he dubs the "lawsuit lobby." He is irate when state legislatures pass laws sought by trial lawyers. He seems to like the political process only when it comes out his way. Large corporations hardly lack political clout or influence in this country. But he seems upset at the growth of countervailing political power, and doesn't like when U.S. corporations lose in court or in the hurly-burly of politics.

Mr. Olson seems oblivious to the political needs that plaintiffs' lawyers sometimes fill. The trial bar most credibly steps in when business fails to recognize or correct problems, or when the executive and legislative branches of government fail to take action. That is how Brown v. Board of Education came to be. The trial bar is not a new fourth branch of government but an energetic user of the familiar third branch of government, the judiciary. From this perspective, the book is just another rant against government by judiciary.

Further, Mr. Olson misses the point when he charges plaintiffs' lawyers with being greedy. He claims that large fee awards - sometimes in the billions of dollars - are the chief motivation for bringing cases. But plaintiffs' lawyers' greed, however obnoxious, is irrelevant to the merits of their cases. And this mention of big fees invites comparison with the extraordinary compensation - sometimes more than $100 million a year - of some corporate executives. Given recent corporate scandals, Mr. Olson does not help his case by calling plaintiffs' lawyers "an arbitrary and untrustworthy plutocracy, unelected and unaccountable, with no special insight into the nature of the public interest." There is greed enough to go around.

This book is far from the last word on the gnarly issues of mass torts and the growing, peculiarly American role of lawyers as spearheads of social charge. Those issues are much more complex than he allows and deserve much more fair-minded and even-handed consideration than he provides. If Mr. Olson's book encourages such consideration, however, it will serve a useful purpose.

Daniel J. Kornstein is a partner with Kornstein Veisz Wexler & Pollard.

©2003 New York Law Journal