Let’s Fix The Legal System; Does Anyone Have a Sledgehammer?

OK, let me start by saying that my real beef is with civil litigators, not all lawyers and though I may use the term “lawyer” in my blog, it is the litigators I am really upset with. I also understand that we need rules of law and people to help guide us through them, such as my colleague here on the Entrepreneur.com Blog Network, Nina Kaufman, who writes the Making it Legal blog (Nina, please don’t hate me . . . for what I’m about to say).

Not all lawyers are litigators. However, all litigators are lawyers and it is that particular group of people that I think have made a mess out of our legal system.

The most outrageous legal cases can make it to court and cost hundreds of thousands of dollars to defend. I recently saw a case where a man decided  NOT to renew his services with a business, then sued the business for the loss of income he incurred by not renewing the service! That’s right. He chose to not renew, then sued because he lost income after not renewing the service! Sounds unbelievable, doesn’t it? Well, to just about any sane person, it is. Unfortunately, litigators can make the most incredible “legal” arguments out of the most outrageous claims, and judges feel compelled to let them go through the system.   Welcome to America!

All of this means that the defendants have to pay thousands–sometimes hundreds of thousands–of dollars to defend these insane claims.

This particular case that I mentioned above dragged on for years in the legal system and cost the defending parties more than $100,000 to defend! The primary defendant refused to settle at any cost. She was not going to buckle to extortion from this guy. However, two of the secondary defendants finally paid a few thousand dollars to make this extortionist and his litigator go away because they couldn’t afford the hundreds of thousands of dollars it would take to have this go all the way through court. The ONLY winner was the litigator.

When I hear stories like this, I can’t help but wonder if Shakespeare got it right in Henry VI when he said the first thing we do is get rid of the lawyers! (OK, I know, that’s not the exact quote but, I don’t want to be sued by someone saying that I was threatening bodily harm to this esteemed group of professionals).

In preparation for writing this blog, I did some research on Shakespeare’s quote and I read one legal website that wrote that Shakespeare’s statement was actually a defense of lawyers because the comment was made by criminals. Therefore they (the criminals) just wanted the “good guys” (the lawyers) out of the way.  Wow, and we wonder why the legal system is a mess. Sorry, only lawyers could argue that the quote from Shakespeare was a compliment!

Well, I believe in solutions and not just describing problems. So here are some possible solutions. First, I believe that there should be mandatory mediation between parties before any lawsuit can ever be filed (the litigators will hate this one)! From personal experience (and contracts that I’ve done), this often works). The problem is, anyone can sue anyone for anything before there is any face-to-face time with a professional mediator. Second, I believe that 100 percent of the time, the losing party should pay the winning party’s legal fees. Furthermore, I think the losing litigator should share in paying this fee! This will make the extortionists and litigators very cautious about the ridiculous lawsuits that are filed.  Watch how many crazy lawsuits cease if the lawyers pushing the process have to pay something if they lose!

Hey, these are only ideas–there may be many better ones out there. I just know one thing. Our legal system is a mess, and it’s going to take a sledgehammer and a lot of work to fix it. What are your recommendations?

OK, I feel better now.  Oh, wait–I forgot something important:

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11 thoughts on “Let’s Fix The Legal System; Does Anyone Have a Sledgehammer?

  1. Dear Dr. Misner,
    I know how frustrating it is for anyone to read stories, such as you have described. As a litigator with 25 years of experience, I can tell you, however, that it is the relatively small number of “bad apples” who create these outrageous lawsuits and the vast majority of us do a pretty good job of screening cases for merit. The fact is that to take on a case with little merit is usually going to be a waste of my time and money.
    The truth is that judges have the power to knock out these bad suits in their infancy and they should use that power more liberally. I also agree with Alternative Dispute Resolution, which is increasingly in popularity and is mandatory in more and more systems today.
    My 2 cents 🙂

  2. Ivan, as someone who spent most of his “still young” life working in various aspects of the legal profession, I offer the following quote from Abraham Lincoln: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a … Read Morepeacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”

    The text of the full speech can be found here: http://showcase.netins.net/web/creative/lincoln/speeches/lawlect.htm

  3. Dear Ivan,

    Great post. I love the disclaimer. The UK has a television programme called grumpy old men… you’d be a natural ;o)

    They say that what happens in the USA, is followed in the UK a decade later and we’re certainly seeing a proliferation of ambulance chasing, accident hunting, TV advertising, no win – no fee solicitors. Frankly it’s sickening and I sincerely hope that good old British common sense wins through and these legal leeches are shown the door. Ever the optimist!

  4. Good stuff Ivan. All the lawyers in my region have let me know they read your post and enjoyed it, however, it was during “billable hours”, so you will need to pay them all!

    Shawn McCarhty BNI ED Ventura County, Ca.

  5. Ivan,

    I love it! You have nailed it on the head! I handled insurance claims for 15 years and saw some of the most ridiculous claims brought forward…. I would have loved to tell some of them what you have said here… This is directly to the point and on target, well put!

    Scott Anderson BNI AD Colorado Springs CO

  6. I enjoyed your post…it is true that there are bad apples, they are the ones who make the news. My favorite lawsuit is still the lady who bought a hot coffee at the drive thru at a McDonald’s, spilled it on herself they sued Mcd’s for serving hot coffee. How fair is that????

    Thanks Dr. Misner for being a voice of reason in the storm, and thank you to the litigator/legal responders with your 2 cents, it is appreciated.

  7. You know, if you think about it, there are a lot of lawyers in the US House and Senate. Perhaps that is why America is in the midst of such crisis?

  8. I do not think a sledgehammer is big enough to do the job. After trying mediation and finding no good faith, the litigation that followed produced a story that makes it so I would need a screenwriter to write it. The wildest of imaginations could not dream the reality the I have lived.

  9. Dr. Misner,

    Having recenlty joined BNI, Chapter 41 Manhattan, I was thrilled to see you embrace Mediation as an alternative dispute resolution process.

    As a former litigator I know all to well the shortcomings of American Jurisprudence. However, a sledgehammer is not what we need. It is people like you that understand that we can appeal to the better part of human nature to help settle our disputes.

    I would welcome you to take a look at my website and view how disputes can be settled more effectively.

    “Conflict is Inevitable, Combat is Optional”

    Patrick L. Rodgers, J.D.
    Smith-Kearns Mediation

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