Krishnan S. Chittur, Esq.

Rhetoric about "frivolous lawsuits" has reached a feverish pitch. Doctors complaining about high insurance premiums, businessmen complaining about increased product safety costs, and stockbrokers complaining about blame-throwing investors, all claim an "epidemic" of frivolous lawsuits. Indeed, there's even a wellfinanced group now to "fight" our "lawsuit culture". Somehow, we seem to have started doubting that our greatest strength - our legal system - is actually our greatest weakness.

The Basics, Again

At its very root, litigation is a civilized method for conflict resolution between people, based on reason, precedent, and a commonly shared sense of fairness. The extent to which people resort to litigation for resolving conflicts depends entirely on the credibility of the legal system. Where that system has credibility to deliver a result which is perceived as just by and large, that will be the first choice for resolving conflicts. That's the reason why our legal system endowed the judiciary with complete independence so that it is bereft of political or other evanescent influences.

Ancillary to this are some principles deemed so integral to the system's credibility that they are part of the system itself. The very Constitution that prescribes judicial independence also mandates, for example, a trial by jury of peers and "due process" of law. This trial by jury - by people like you and me - ensures that the legal system does not function in isolation from the general populace; the butcher, the baker and the candle-stick maker have a real opportunity to participate meaningfully in the system. Such participation ensures the legal system's credibility amongst laymen.

Where the legal system lacks credibility, other methods of conflict resolution step in to fill the void. The first alternative is law of the jungle - brute force and selfhelp by the powerful, desperation and simmering discontent for the rest. Other methods, such as resort to religious or cult leaders also might prop up - witness Iraq or Afghanistan today, where religious figures and warlords rule and dispense "justice."

An Alternative Method of Conflict Resolution?

Let me illustrate this. I recall being involved in an auto accident many years ago (not in this country). Bright, sunny day, traffic moving along briskly in the highway. Out of the blue came this guy, crossing the highway right before our car. My driver slammed the brakes, but simply could not stop the car before hitting him. The impact swept him off his feet and onto the hood of the car; in the process, he flailed his arms, shattered the car's front windshield with the tiffin box he was carrying in his hand, and rolled sideways to the ground stunned momentarily.

When the car stopped a second or two later, we immediately jumped out to check the victim. But those few seconds were all it took for a mob to gather. Vigilantes rolling up their sleeves to reveal their bulging biceps and to "teach" the driver "a lesson". My driver was stunned, like the rest of us - and nobody even knew what injuries (if any) were sustained by the victim. The mob interrogation of my driver began. "Can't you see? Are you blind?" "Why did you hit him?" "Why didn't you stop the car?" There was my driver, about to be lynched. He pleaded, cajoled, and literally begged anyone who would listen, trying to persuade them that he was not to blame and would they please, pleeeeeeeeeeez, spare him because he had a wife and two children to support, and his widowed mother was in the hospital- "Where do you live?" "How old are the children?" "Why are you driving this guy's car?" "What is your salary?" - on went the barrage of questions from all around, self-appointed inquisitors asking intrusive irrelevancies. That's instantaneous "Due Process" on the street - presumably they were trying to ascertain just how many "lessons" he needed.

We stood there answering all these and other absurdities - don't even THINK of objecting, a la Perry Mason, on grounds of "irrelevant, immaterial, and not pertaining to the facts of the case" (or any other grounds), OK? Meanwhile, fortune smiled. A police jeep pulled up, and my driver frantically started shouting "police!! police!" and aggressively shoving aside those between him and the jeep. The mob parted instantly like the Red Sea before Moses. My driver, rushing as quickly as he could, dived deep into the jeep, as far as he could go therein. The mob dispersed very quickly; nobody wanted to get "involved" with the police or the legal system. Indeed, when the police started their investigation seconds later, they could not find anyone who had witnessed the accident, other than us! Say what you will, that's not complimentary to the credibility of that country's legal system.

Keep The Courthouse Doors Open

If you cannot handle such an irate mob at a moment's notice - that's how quickly accidents happen and mobs gather - you have no business driving in many countries of the world. The mob simply assumes responsibility to deliver instantaneous justice. Not willing to wait for courts, lawyers, trials, witnesses, or all that. "You rich people" can buy everything, and "you guys" can drag us out forever. So "we want justice" - here and now.

That-s what happens when people have no faith in the legal system, or its capacity to render justice to laymen. It's extremely important to remember this every time big business asks us to close the doors of the court, or increase access barriers, to certain claims. If that were the ideal, perhaps Afghanistan and Iraq are close to heaven today: businesses don't have to worry about defrauding consumers, doctors don't even have to pay malpractice premiums, and stock investors don't even exist!

What's Frivolous?

What's a "frivolous lawsuit?" Depends on who you ask. As a lawyer for over a quarter of a century, and as an arbitrator who has presided over and resolved many disputes, singly and in panels, this much is clear to me: every plaintiff considers his/her claims to be meritorious, while every defendant considers those claims to "frivolous."

A plaintiff and his/her lawyer spend enormous efforts, funds, and time in prosecuting the claim. And contrary to popular belief, the lawyer often is a restraining factor in our system, because it's often the lawyer who advances the costs and expert fees, and spends the time needed pursuing legal theories, investigating facts and marshaling evidence, and battling usually well-heeled defendants. And like everyone else, lawyers don't like to lose time or money by pursuing a doomed claim; no one wants to bet on a losing horse. If you seriously believe that anyone would spend the tens of thousands of dollars, and the hundreds of hours, it costs to try a case despite believing that the claim was frivolous, then I have a bridge to sell you in Brooklyn.

The Attack On the Jury: An Unwarranted Insult to You

Hundreds of trials take place in the country every day - obviously meting out justice that meets people's expectations by and large. But it's the rare case whose facts can be readily spun by media-savvy professionals hired by big business that hits the headlines, and remains there, about some allegedly runaway jury rendering an outrageous verdict that's an insult to common sense. Indeed, even without any specific case, business interest groups have managed to sway public opinion with orchestrated propaganda against the legal system allegedly run "amuck" due to runaway juries supposedly swayed by emotion due to rhetoric from crafty plaintiff lawyers.

Pause a moment to think: Does this makes sense at all? The jurors are not creatures from outer-space, but people like you and me. Are YOU such a person who could be swayed by emotion? Ignore the law? Ignore your solemn oath to do justice according to law? Ignore reason and a sense of fairness? Give away millions of dollars to someone else (while you continue to slog to make ends meet)? And even if YOU are, what are the chances of you being with 6-12 others (usual jury size) who share the same attitude and vulnerabilities?

Besides, the 6-12 others in the jury are usually people of completely different backgrounds, educationally, psychologically, socially, and intellectually. Former New York Mayor Rudy Giuliani and current Chief Judge of New York's highest court Judy Kaye have ALSO served as jurors, amongst tens of thousands of others. Given this diversity, is there any basis for suggesting that plaintiffs' lawyers are Pied Pipers, and jurors simply rats to go wherever the Piper's music takes them? Are YOU such a blind follower rat? Isn't this derogation of the jury ? of YOU ? an offensive, unwarranted insult to YOU?

But now, appreciate the communication savvy of big business that has a lot of people convinced that actually it's someone else - those "jurors" from outer space - who are waiting to get emotionally swayed to give goodbye to reason and common sense and to bankrupt honest businessmen and conscientious insurance companies. Can you now see what orchestrated lobbying and skilled marketing can do? And what money can really buy?

What about Big Business and Their Lawyers?

Unquestionably, big business has always had the best lawyers, PR men, jury consultants, and every other expert that money can buy. Does anyone seriously believe that objectively, big business is somehow handicapped by a lack of resources available to plaintiffs or their lawyers' Or defense lawyers, as a breed, are somehow different or morally superior to plaintiff lawyers'

I recall a case involving a major bank, a class action on behalf of people who had been scammed out of their lifetime savings by a bank manager in cahoots with some crooks, utilizing the bank and his position to the hilt. My clients - the named plaintiffs - were two elderly people who were left to seek charity during what was supposed to be their golden years. After two years of litigation, at the judge's behest, we attended a settlement conference with defendants and their lawyers. In preparation for the conference, we spent hours marshaling the incontrovertible evidence on the bank's liability, on its gross failures to supervise and monitor the crooked manager, and on its reckless indifference to settled banking practices. But minutes after the conference started, even as we were just beginning to address the merits, the bank's lawyers cut right to the point. "Don't bother about that, we know legally we are liable," he said. "But let me tell you something: Your clients are 82 and 74 years old today. We can drag you through trial, and assuming you win, we can tie you up with appeals, remands, and rehearings for a few more years. And if your two geezers die somewhere along the way, you have to start all over again with another class member. Also think of how much time and money your firm has already invested in this case, how much more you'd have to put up. How long more are you guys willing to live on adrenalin and fresh air?"

If you are flabbergasted, welcome to the real world. Defendants and their attorneys can also be as unscrupulous as they come. But think about this: When was the last time you heard about a meritorious claim being bounced by wily defendants? Or about slimy tactics used by defendants and their attorneys? And if, like most people, you have not, why not? Why is it you've seen only plaintiff's attorneys? being subject to unrestrained name-calling - the latest, "terrorists",was from the CEO of multibillion AIG?

Conclusion

So next time you hear cribbing about "frivolous lawsuits" or "runaway juries", follow super-conservative guru Ayn Rand's dictum: Question the premises. If businessmen complain about punitive damage awards, get the details and find out what exactly they did that so upset 6-12 people like YOU as to warrant a hefty punishment to the pocketbook. If someone grumbles about malpractice premiums, ask them if they know how insurance companies set premiums and how those companies recuperate investment losses . And next time you hear about some ridiculous proposition for curbing access to courts, tell them we'd rather deal with the dispute in Courts than resolve it in the streets.

New York, New York
April 16, 2004

Krishnan Chittur, Esq.
Chittur & Associates, P.C.
286 Madison Avenue Suite 1100
New York, New York 10017
Tel: (212) 370-0447
Email: kchittur@chittur.com