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Jewish World Review
Dec. 7, 2005
/ 6 Kislev, 5766
The enormous cost and creativity-killing pace of ordinary civil cases
In recent months, we've seen seemingly endless arguments over
the Supreme Court. But as I watch people comb through old documents and
parse interviews for clues to the nominees' positions on high-profile
constitutional questions, I'm struck by how little attention has been given
to one of the biggest problems in America's judicial system: the enormous
cost and creativity-killing pace of ordinary civil cases.
In my years doing consumer reporting, I watched every American
industry find ways to do things better, faster, and cheaper. Today's
computers cost less, but are more powerful. Cars got better. Supermarkets
offer more for less. Most every business is better.
But not the law business. In law, everything is slow and
expensive, and our choices limited.
For $1 I can buy a newspaper, and every day it's different. But
try to get a divorce or a simple will for less than $300.
The lawyers defend their fees and snail-like pace, saying,
"We've got to make sure you get due process." Glad they're so concerned. But
when there's no money in a case, people have trouble getting a lawyer, let
alone getting due process. When there is money, lawyers even insist on undue
process. In the O.J. Simpson trial, they even quibbled about the jewelry the
other lawyers wore.
Other businesses pad bills, too, but competition limits it.
There's less competition in law because lawyers outlawed competition from
outside their profession they prosecute paralegals who offer cheaper
alternatives, calling it "unauthorized practice of law." And they are all
bound by rules of procedure, drafted by lawyers and, for the federal courts,
issued by the Supreme Court, that call for volumes of paper and make lots of
work lucrative work, if you're a lawyer.
Civil cases usually take years. It almost makes me feel sorry
for the people who sue me. A guy in Philadelphia who said I damaged his
reputation had to wait four years just to get me into court.
The essence of my story was that Irwin Rogal, a dentist, ran a
dental "mill," telling people (including me, after he examined me for a
"20/20" story) we had jaw problems, and then charging big bucks for dubious
"treatments." In his lawsuit, he claimed he had not recommended treatment to
Sounds simple for a court to resolve. The exam was on videotape.
The jury could watch the 40-minute tape and then decide. But that never
happened. Instead, the dentist's lawyers and mine spent three years sending
legal papers back and forth. My lawyers (did I mention they were paid by the
hour?) demanded that the dentist produce vast amounts of paperwork detailing
"all persons other than your attorneys with whom you have had written or
oral communication" and "each workshop or seminar in which you have
participated as a speaker."
The dentist's attorneys demanded that we "state the title and
author of each book that was used as a source of information, the name and
date of publication of each newspaper, magazine, pamphlet . . . documents .
. . " In case we didn't know what documents were, they spelled it out: "Any
abstracts, accounts, accounting records, accounting advertisements,
agreements, bids, bills, bills of lading, blanks, books, books of accounts,
brochures" that's just the A's and B's.
Eventually, my case got to court. I assumed the jury would watch
the tape, but they never did. Instead, we had war. War is what a lawsuit is.
Each side played snippets of the videotape. His side played a few minutes
that made it seem as if he hadn't recommended treatment; my side played a
few that demonstrated he did. This happened again and again for days. It
was ridiculous. That's what got to me most, watching my case: the
extravagant waste. Even with lawyers charging hundreds of dollars an hour,
the judge just let it go on and on.
I finally won, but the ordeal cost ABC a fortune. Why couldn't
the judge say, "Shut up. This is a waste of time and money. We're just going
to play the tape."
"Because most judges are afraid to offend," Joe Jamail, a Texas
lawyer who's made millions, told me.
So these lawyers are just self-indulgent? "No," said Jamail.
"They were being paid."
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