Do We Have Too Many Lawyers?

By Julie Johnson/Washington and Ratu Kamlani/New York

As a political gambit, the method is tried and true. If you are an unpopular Vice President, refurbish your image by deriding an occupational group with an even lower approval rating than your own. Spiro Agnew popularized the ploy back in 1969 with his bitter denunciations of the news media. Following the same playbook, Vice President Dan Quayle -- a lawyer -- wangled an invitation to the American Bar Association convention in Atlanta and last week used the forum to mount a blistering attack on the legal profession.

"Our system of civil justice is, at times, a self-inflicted competitive disadvantage," Quayle declared at the outset. What followed was a somewhat pedestrian recital of recommendations for reforming the legal system from the President's Council on Competitiveness, which the Vice President chairs. Many of these ideas represent pro-business leftovers from the Reagan Administration. But Quayle's speech is likely to be remembered for the string of rhetorical questions he asked in conclusion: "Does America really need 70% of the world's lawyers? Is it healthy for our economy to have 18 million new lawsuits coursing through the system annually? Is it right that people with disputes come up against staggering expense and delay?"

Those were fighting words to outgoing A.B.A. president John J. Curtin Jr. Departing from protocol, Curtin stepped to the microphone to offer an impromptu rebuttal. "Anyone who believes a better day dawns when lawyers are eliminated bears the burden of explaining who will take their place," Curtin declared to cheers from the audience. "Who will protect the poor, the injured, the victims of negligence, the victims of racial discrimination and - the victims of racial violence?" Not mentioned, of course, were the corporations that provide some A.B.A. members with the bulk of their income. Quayle was allowed the final word. "Nobody is talking about eliminating lawyers," he said, backtracking a bit. "So let's not be extreme about this."

That is precisely the problem -- almost everyone is an extremist of one stripe or another when it comes to debating the legal system. Lawyers are advocates, and for some, no cause is more likely to arouse passion than the defense of a profession that, after exacting a grueling apprenticeship, provides their livelihood. The political system is apt to provide only limited succor; nearly half the members of Congress are lawyers. That is certainly one reason why nonlawyers feel compelled to resort to the weapon available to oppressed people everywhere -- sarcastic humor. (Q. Why does New Jersey have so much industrial waste and Washington, D.C., so many lawyers? A. New Jersey had first choice.)

Quayle is far from the first politician to mine this populist bedrock of antilawyer sentiment. Jimmy Carter attacked the legal profession for providing unequal standards of justice for the rich and the poor. Quayle's emphasis was not justice but competitiveness. By framing the debate in these terms, he raised a series of provocative questions about the legal profession's role in national economic life.

How Many Lawyers Are Too Many? By A.B.A. reckoning, there are now almost 800,000 licensed lawyers in the U.S., 1 for every 300 Americans. Even amid the well-publicized contraction of blue-chip firms, the fruits of the law remain abundant -- across the U.S., partners earn an average of $168,000 annually, with incomes up to $1 million not unusual in places like Manhattan. Small wonder 94,000 college graduates applied for admission to law school this year.

The glut of lawyers, as Quayle pointed out, is a peculiarly American phenomenon. The standard defense is offered by Vanderbilt Law School professor Harold Levinson, who says, "We ask more of our legal system, perhaps more than any other country in the world." True, the courts have a broad mandate in everything from the environment to civil rights, but blaming the legal system for the nation's disproportionate number of lawyers is a somewhat circular argument.

Is There Too Much Litigation? This claim is at the heart of Quayle's argument: the Council on Competitiveness contends that lawsuits filed in federal court have nearly tripled in 30 years. Quayle also trumpeted a 1989 Forbes magazine estimate that the annual cost to the nation of all litigation and related insurance is more than $80 billion. As Walter Olson, the author of The Litigation Explosion, argues, "A litigator can come around, dump a pile of papers on your front lawn and you can go literally broke trying to respond to it."

No one can deny the growing American penchant for ludicrous lawsuits, but the issue that arouses Quayle is far narrower: product liability suits against major corporations, on whose not-so-hidden behalf Quayle was speaking. David Leebron, a professor at Columbia Law School, acknowledges that the number of cases has soared in a few areas, such as damages from asbestos. "These are primarily what make it look like litigation has exploded," he contends. The significance of the class-action lawsuits, he contends, is that they have "increased the numbers and kinds of plaintiffs who can bring their claims to court."

In the current lax regulatory climate, which the Bush Administration fosters, lawsuits often represent the only way to enforce corporate accountability. As consumer lawyer Linda Lipsen says, "You can't stand Corporate America before a blackboard and have them write 100 times: 'I will not put issues of greed over issues of public safety.' " The cozy pattern of self-regulation among some professional groups, like doctors, only compounds the litigation problem. Legal critic Charles Peters, the editor of the Washington Monthly, argues that this means "there is no effective discipline for misconduct by a physician other than the malpractice suit."

Did Quayle Offer the Right Remedies? Some of the Vice President's proposals, such as a societal emphasis on mediation over litigation, can be embraced by everyone other than the most self-protective attorney. Others are intriguing, such as his advocacy of the English system, in which the loser in a civil suit is required to pay the victor's legal bills.

But no legal issue raised by the Vice President is more controversial than his attack on punitive damages in civil cases, which he claims "have grown dramatically in frequency and size." Many legal experts deny that such a problem exists. There are, to be sure, random horror stories of seemingly senseless multimillion-dollar jury verdicts, but scant evidence exists that such anecdotes add up to a statistically valid pattern. A 1990 study by the American Bar Foundation concluded that "juries do not award punitive damages in a large percentage of money damage cases." But Quayle insists that judges, not juries, should have the sole power to assess monetary damages. This is an odd stance for a populist, since juries represent the one role for the average citizen in the closed world of the legal system. If reform is needed, far more worthy is an issue Quayle neglected: the way plaintiffs can win a major case, as in much of the asbestos litigation, and then watch as their compensation is devoured by lawyers and expert witnesses.

In politics, it is dangerous to judge the quality of the message by the identity of the messenger. For many Americans, Dan Quayle remains the most problematic figure in the Bush Administration -- the target of TV comics rather than the source of substantial policy proposals. None of this should detract from the public service Quayle performed at the A.B.A. convention. Maybe it is true that God loved lawyers because he made so many of them, but that does not mean that the rest of us -- from the Vice President on down -- need to be happy with the result.

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CREDIT: TIME Charts by Nigel Holmes. [TMFONT 1 d #666666 d {Source: President's Council on Competitiveness (Agenda for Civil Justice Reform in America)}]CAPTION: MORE CASES

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