New York Law Journal

The Lawyer’s Bookshelf
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, New York, N.Y. 352 pages, $25.95.
June 13, 2003

Reviewed by Peter H. Schuck; Peter H. Schuck is the Simeon E. Baldwin Professor of Law at Yale Law School. His book, "Diversity in America: Keeping Government at a Safe Distance," has just been published by Harvard University Press.

Beating up on lawyers is among the most ancient of sports, and for good reason: it is jolly good fun. Many lawyers are stuffy and have an inflated view of their [our] importance, making us easy to scorn and lampoon. Because we wield great social influence -- Tocqueville called the legal profession America's natural aristocracy -- critics envy our power and rejoice in our pratfalls. Lawyers sometimes practice a particularly obnoxious form of hypocrisy, invoking the language of justice and fairness to promote and cloak what is really injustice and self-interest. To the layperson, we use our arcane argot more to mystify and intimidate than to communicate, and we deploy our often labyrinthine procedures more to delay and distract than to get to the substantive point. Our fees often seem vastly disproportionate to our social value added. The reforms we propose would almost always have the effect -- surprise, surprise -- of increasing the demand for, and authority of, lawyers.

Walter Olson's "The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law" is the latest example of this hoary genre, and it is one of the more entertaining. Mr. Olson, a shrewd observer of the legal culture with previous popular books attacking litigation trends to his credit, is a skilled polemicist. He pursues his quarry, tracking it to its litigious lair where he skewers and stews it, serving up juicy morsels to hungry lawyer-phobes. Even lawyers, however, will find it a tasty snack -- unless, of course, they happen to be the class-action entrepreneurs and state attorneys general who constitute the main courses on his menu.

Mr. Olson begins with the mega-litigation over tobacco products. He shows how the plaintiffs' lawyers parlayed their astronomical negotiated legal fees into other areas of class-action opportunity, diversifying their portfolios like the canny investors they are. Other chapters deal with the litigations involving guns, breast implants and asbestos, as well as plaintiffs' lawyers' practices of using TV to try their cases, concentrating their cases in the "jackpot belt" states of the Gulf Coast, exploiting "runaway juries," and lobbying legislatures, governors and even the White House to great effect.

Mr. Olson's is not a balanced account or a judicious weighing of competing values. His only mention of defense lawyers is to point out their complicity with the plaintiffs' bar in seeking to expand the litigation market, and the only deterrence he sees in this litigation is over-deterrence. Judging from the endnotes, Mr. Olson has distilled newspaper accounts and favorable law review articles, not engaged in original research or seriously entertained counter-arguments. But what makes it such an easy and enjoyable read is precisely his one-sided presentation and his lack of serious analysis -- along with his clever catch-phrases and striking similes. [For example, he likens blaming America's gun culture for gun manufacturers to blaming its golf culture for the firms that sell tees, balls and putters.]

Mr. Olson is at his writerly best when he flips some of the rhetorical and ideological tics of the plaintiffs' lawyers and their media allies by showing their self-serving hypocrisies and self-interested pieties. Consider some examples. Describing the mass tort class actions that drove manufacturers of breast implants, Bendectin and other products out of business despite scientific evidence of their products' safety, Mr. Olson observes: "In the tenacity with which they admit nothing and dispute everything, many of today's trial lawyers have come to resemble no one so much as their opposite numbers, the old-line tobacco executives who still insist that this business about cigarettes causing cancer is an open question." In discussing how TV networks have tried to suppress the serious errors in their well-publicized attacks on product safety, he points out that "Network execs, like trial lawyers, can natter on all day about the People's Right to Know when it comes to everyone else's obligations to disclose, then get huffy about their Right to Privacy when inquiries are made about their own doings." Mr. Olson recounts how anti-gun lawyers always invoke the David-and-Goliath metaphor even as their litigation is supported by George Soros [among others] and mocks the press for parroting the metaphor unmindful of the absurd "image of the Soros team trying to pose as fiscal underdogs." Plaintiffs' lawyers, he points out, insist that gun-makers are liable for selling in high-crime neighborhoods, while elsewhere demanding that businesses be barred from redlining these same neighborhoods and profiling the consumers who reside there. The lawyers who conscripted unknowing plaintiffs to sue Milli Vanilli's music producer for fraud, he says, "were doing very much the same thing that the record promoters had done: line up appealing if vacuous faces to lip-synch their own compositions." And don't forget the Swiftian spectacle of state attorneys general who extracted billions of dollars from cigarette manufacturers then turning around and protecting those same companies from other liabilities that might send them into Chapter 11.

In his final chapter, Mr. Olson moves from description and denunciation to prescription. With characteristic hyperbolic flourish, he likens the mass tort class-action lawyers who claim to be protecting us from "partisan gridlock" to the caudillos who seek to legitimate their autocratic rule by attacking democracy as slow, indecisive, inefficient and compromised. These "litigators on horseback," Mr. Olson says, must be rendered as democratically accountable to us as are the other decision-makers who wield the power to regulate products, destroy industries, raise prices, buy politicians and judges and override public opinion concerning which risks and vices are acceptable and which are not. Some of his reform proposals -- federal court jurisdiction over class actions having national ramifications and a "loser pays" statute on attorney's fees -- are familiar items on the wish list of defendants and insurers and are worthy of a rigorous analysis that he does not give them here. Another proposal -- creation of a public agency to exercise the kind of oversight and regulation of the litigation industry that, according to Mr. Olson, legislatures, judges and bar associations have eschewed. That this proposal comes from one who worries that government power tends to spread like cancer and deform much of what it controls is a paradox that he may wish to explore in his next book.

©2003 New York Law Journal