The Marketing & Sale of American "Justice" - Creating Demand

This is the seventh installment in a special series on the marketing & sale of American "justice."  The focus of this post is how the plaintiff bar artificially created a demand for its services.  This is an industry that has done well and will continue to do well.

The genius of the plaintiff bar has been its ability to embed in the national consciousness of America a whole new idea.  That's the notion that lawsuits are the right way to resolve disputes, seek abstract or concrete justice [usually through an award of damages], and change society.

That selling job began in the 1970s.  And few products or services have been as successful.  Annually, according to the Pacific Research Group, lawsuits cost $865 billion, up 46 percent in the last five years. As Steve Hantler points out in Overlawyered.com , July 18th, the Iraq War in comparison runs $108 billion a year. 

And, sure, demand is down in some categories such as the 42-percent drop in the past six months in class-action securities suits.  But overall the plaintiff bar is still a very healthy industry and has enormous growth potential - if it can get its act together on image and the kinds of suits it instigates.

It's hard to remember that it wasn't always Think-Lawsuit. But it wasn't.  At one time, points out James M. Wootton of Mayer, Brown, Row & Maw, in a white paper "How We Lost Our Way" for the Washington Legal Foundation, "a lawsuit was viewed as a conflict between private parties that was to be avoided."  Sue was not part of the mental infrastructure of America. 

If you got caught in a lawsuit, it was a source of, well, shame.  Frequently it triggered its own form of post-traumatic syndrome.  And you never ever ever initiated a lawsuit.  Somehow you worked it out another way.  Not all of those ways were good, of course.  In my Jersey City, NJ neighborhood, we were instructed by our elders to steal from stores which did us wrong.  Lawsuits with merit probably represent progress in a civilization.   

Not that everyone sues now, but the point is: Everyone considers suing.  And usually it's the first thing that pops into our heads when things don't go our way.  John Kenneth Galbraith commented, "The striking thing about the stock market speculation of 1929 was not the massiveness of the participation.  Rather it was the way it became central to the culture."  Lawsuits are now central to our culture.  Creating this demand where it hadn't existed before is a feat right up there with Apple's iPod. 

We all know: When we don't seriously consider suing, people jump on us.  Don't we have any self-respect?  Why aren't we standing up for ourselves? And, we could make some money, we are also told.  The politically correct thing is to pretend to have thought about suing and to have decided not to.

Given the success of the plaintiff bar in creating this lawsuit mindset, what sane capitalist would predict that this industry is going to let itself be eliminated.  Tamed?  Sure.  And even plaintiff attorneys are claiming that we're seeing the effects of tort-reform legislation and regulation.  One prominent plaintiff attorney opined that the three recent state supreme court rulings favoring the former lead paint industry  might not have happened if tort reform hadn't taken hold in many states.

What I anticipate is a growing sophistication of the plaintiff bar.  That old noble crusader persona will be replaced by the caring service-provider who concedes this is how they sing for their supper.  You got it: Transparency.  In addition, there will be less lunacy in configuring lawsuits. I don't anticipate another wild stretch like public nuisance being applied to an industry which hasn't existed for years happening again.   

This reinvented version of the ham-handed plaintiff bar with its platitudes about doing the right thing will present even more formidable and perhaps even more costly challenges to our legal system. 

Comments

[Greedy Trial Lawyer]

Thank you for your praise of the work of the plaintiff bar.