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Lawyers are Killing Our Economy

From my father and former Texas Court of Criminal Appeals Judge Stephen Mansfield...

Lawyers Are Killing Our Economy

As of 2009 there were 20,000 lawyers in Japan, population 125million. In Germany, population 82million, there were 133,780. France had 45,000 lawyers out of 62million residents. The United States, population 305million, had 941,000. By 2015, we will have over 1,000,000, meaning 1 out of every 310 men, women, and children living in the US will be a lawyer. We will have nearly 3 times as many lawyers as the European Union. Is this a good or a bad thing? Clearly the answer is bad.

As the number of lawyers and law schools has exploded over the last 30yrs, the cost to the country in economic loss and loss of personal freedom has been immense. Remember, lawyers, unlike engineers, plumbers, miners, and manufacturers do not produce anything tangible. Lawyers produce lots of lawsuits. Lawyers have to eat just like anyone else; hence through state legislatures and the Congress, create new causes of action. Well-intentioned laws like the Americans with Disabilities Act have led to highly-abusive ADA filing mills that are basically practicing legal extortion. Environmental laws have led to all kinds of questionable lawsuits filed by activist environmental lawyers whose goal seems to be to destroy oil, natural gas, coal, and nuclear energy while enriching themselves. Activist judges and their trial lawyer allies have colluded, in many states, to prevent (or overturn) meaningful medical malpractice and tort reform.

You might ask don't trial judges have the authority to throw out clearly excessive jury verdicts, such as a $10m dollar award against a nursing home for the death of an 88yr old Alzheimer's patient due to a bed rail not being secured? If that judge is in a state where judges are elected, she knows if she tosses out the verdict there's a good chance the trial lawyers will run a well-financed candidate against her in the next election. In states were judges are appointed, crossing trial lawyers means a trial judge will never get a shot at a promotion to a higher court.

Everyone knows that billions of dollars are wasted every year on unnecessary medical procedures out of fear of lawsuits; estimates range from $10b to $200b per year. Needless to say, Obama's new health regime ignores medical malpractice tort reform. In fact, some commentators suggest language in the bill may create new causes of action against health care providers, employers sponsoring health care plans, and insurance companies. By the way, forget Congressional action on tort reform; after Big Labor the major contributor to Democrats is the plaintiffs' bar.

Let's not place all the blame on plaintiffs' lawyers for excessive legal costs. Every major city in this country has huge law firms serving big corporations. Every year, the Fortune 500 spends billions of dollars on legal fees for various reasons: fighting lawsuits, dealing with government at all levels, etc. This is money that is diverted from research and development and job creation. Entire industries, notably the asbestos and pharmaceuticals, have been crippled by ruinous litigation, and it is getting worse. Look at all the ads on TV by lawyers soliciting clients to go after drug companies, etc.

What needs to be done? Let me suggest the following:

1. Reduce the number of law schools. We don't need another 30,000 new lawyers every year, many of whom won't find jobs that will allow them to pay off their student loans.
2. Institute "loser pay." Germany, Japan, the UK, France, and Canada have this rule and all of them are considered to be good places to live. Simply put, if you file a lawsuit and you win, you get your damages plus legal fees. If you lose, you pay the other guy's legal fees. Can you imagine anything more fair? This will kill most frivolous lawsuits.
3. Cities and States are paying billions due to lawsuits resulting from criminals killing themselves in jail or by fleeing felons who hurt bystanders, or drunks who drive in front of trains, etc. The solution: reinstate meaningful sovereign immunity that allows suits only in cases of clearly gross negligence by the city or state.
4. Establish special courts, similar to the Federal Tax Court and Bankruptcy Courts, to handle medical malpractice and drug cases. There would be no jury and the courts could appoint their own experts. Limits on non-economic damages of say, $500,000, would apply. In drug cases, FDA approval would be considered an affirmative defense.
5. Establish a nationwide rule that does not allow US courts to hear foreign cases. If someone gets hurt in Brazil, the case belongs in Brazil, not Houston, TX.

Lawyers are not all bad, of course. Many lawyers do pro-bono work and contribute to their communities. A strong criminal defense bar is essential to ensure everyone's rights in the event of facing criminal charges and to protect us against prosecutorial abuses. And, yes, persons who have faced discrimination due to race, sex, or disability need access to competent representation. None of this would be threatened by any of the 5 reforms recommended above.

S.W. Mansfield
Former Judge
Texas Court of Criminal Appeals

Disclosure: No Positions