In a recent speech, President Bush repeatedly bemoaned an American civil justice system plagued by "frivolous lawsuits." This phrase is the mantra of those who seek to close the courthouse doors to ordinary people. But are greedy trial lawyers really running rampant in the courts, filing so-called junk lawsuits at every opportunity?

We already know the answer, but here’s a way for the president to find out for himself: In the mode of the administration’s ongoing search for Iraqi weapons of mass destruction (WMDs), perhaps it’s time for Bush to appoint a special commission to scour the courts for trial lawyers’ alleged weapons of frivolous litigation.

This search would, of course, prove as fruitless as that for WMDs.

For years, tort "reform" advocates have argued that a litigation "explosion" is bombarding the courts, yet empirical evidence has never supported that claim. Similarly, although our opponents complain that class action recoveries and attorney fees are spiraling upward, a recent independent study shows no increase in awards over the past 10 years and confirms that fees are holding steady. (For more on this study, see page 15.)

The president’s investigators could question thousands of federal and state judges about their dockets: Are they harboring frivolous lawsuits? The commission would learn about the procedural safeguards designed to ensure that only meritorious cases proceed. The judges would explain that they monitor lawsuits filed in their courts at every step and that they can—and do—dismiss baseless claims.

Next, the commission might ask trial lawyers how often they have risked their financial future on frivolous cases, representing clients on a contingent fee basis and advancing litigation costs from their own pockets. The commission would discover that the contingent fee system filters out cases that lack merit, by shifting financial risk to plaintiff lawyers—most of whom work in small firms without huge resources.

The commission could then turn its attention to the large corporate firms, which the president failed to mention. How valid are their clients’ claims? The investigators would uncover corporate cases that had little chance of success and were filed only to enhance or prolong a business advantage. The commission might ask: Are there two standards of justice today—one for large corporations and one for consumers?

If President Bush’s commission were to find credible evidence of frivolous lawsuits, ATLA would support taking action to address them. We have always opposed frivolous claims, just as we oppose frivolous defenses. But because the civil justice system works as it should, widespread "junk lawsuits"—like the phantom weapons of mass destruction—would not be found.

Triple threat

Instead of campaigning against civil justice, the president should focus on how to help our judiciary. The courts are, indeed, struggling—not because of frivolous lawsuits, but because of insufficient funding, attacks on the decision-making authority of judges and juries, and procedural hurdles that can slow the wheels of justice nearly to a halt.

With federal and state governments facing budgetary woes, court funding is on the chopping block. Insufficient funding compromises litigants’ rights. In a few states, including New Hampshire and Oregon, the crisis has been so severe that courts have declared temporary moratoriums on jury trials.

At the same time, powerful interests are seeking to limit the power of judges and juries to make reasoned decisions based on the facts. The tort "reform" industry would recoil at the suggestion of wage and price controls—so why shouldn’t there be a "free market" in determining compensation for grievous injury? Judges and juries make decisions that reflect how people value justice in their communities.

Lawmakers advancing the tort "reform" agenda seek to erect pretrial hurdles for plaintiffs that would effectively deny justice by delaying it. The class action bill, which was pending in Congress at press time, would create the greatest expansion of federal jurisdiction in history and would spawn a cottage industry of legal work to remove state cases to the federal system.

The president’s attack on "frivolous litigation" actually aims at the most legitimate claims brought to court. He and his tort "reform" allies would cap damages at $250,000 in cases of such severe injury that most people, when they hear the facts, find the amount woefully inadequate. The proposal to cap damages not only does nothing about frivolous lawsuits; it actually targets the most serious and deserving claims.

Before attacking citizens’ rights, President Bush should get his facts straight. The American people have learned the dangerous consequences of decision-making based on misinformation and unsubstantiated anecdote. When will the president learn, too?

David S. Casey Jr.