Jottings By An Employer's Lawyer

Monday, October 23, 2006

The Real Cost of Litigation

Lord Hoffman, one of the judges on Great Britain's highest court is quoted in the article Making Civil Justice Sane by Philip K. Howard, on the true cost of litigation:

The problem was that judges had come to view litigation merely as a way of resolving private disputes and no longer appreciated that the proliferation of lawsuits affects the behavior of everyone in society. If judges don’t act as gatekeepers, drawing the boundaries of claims on behalf of broader society, then the mere possibility of a lawsuit will end up “diverting resources from activities where they are most needed and . . . restricting the liberty of individuals to enjoy their lives in their own way.

Anyway who has been involved daily in litigation will have a hard time disputing those words.

Which does not mean that all consequences of litigation are bad; no one could (at least seriously)argue that the workplace of 2006 is not better than the workplace of 1963, and that the Civil Rights Act of 1964 has played a large part in that difference, and much of what it has accomplished would not have happened but for litigation. But still, what Lord Hoffman says rings very true ... and finding the key to keeping the litigation benefits for society from outbalancing the costs to society is or should be the holy grail of the justice system.

A step, would be the recognition of those who sit on the benches of the wider impact when the focus is primarily (or even solely) on moving their docket.

A hat tip to JD Hull at What About Clients? for the link to the article.

A good follow-up question is what you do when lawsuits have in fact changed behavior. If the workplace today is better, is it in danger of regression if those behavior-changing laws weren't in place, or if they were watered-down by increasing the threshold required by "gatekeepers"?

I don't know the answer to this, but I do know that not many people are asking this. I put the blame for that on the fact that in the US there are scant few in politics who would want to address this problem. Both sides have knee-jerk views on this.
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