By Don Oldenburg I Washington Post Staff Writer
Philip Howard is resigned that he can't avoid sensational cases when arguing that America's biggest legal problem is its out-of-control litigious culture, in which anybody can sue anyone for just about anything.
He knows that those off-the-wall claims and headline verdicts are the focus of the public's love-hate relationship with lawsuit mania. And although they summon incredulity, over time they become the urban legends of law, the "Ripley's Believe It or Not!" of jurisprudence that shape public perception of the legal system.
Among them are farcical cases, like the disabled man who sued a West Palm Beach strip club because his seat didn't provide an "equal access" view of the stage. Outrageous cases, like the families of 11 illegal immigrants, who died trying to cross 800,000 acres of desert from Mexico this summer, suing the United States for not providing water. Dumb cases, like the man who sued because he was circumcised shortly after birth -- without his permission. And strange cases, like the one involving a British musician, who last week paid a six-figure settlement for including on his new album a minute of silence that apparently plagiarized a 1952 "composition" that was nothing but silence.
Nominees for the worst pie-in-the-sky torts seem endless, says Howard, seated with hands-folded patience in the plush modernist conference room at Covington & Burling's Washington law offices at 12th Street and Pennsylvania Avenue NW. As the New York-based law firm's vice chairman, he knows his way around senseless suits and exorbitant verdicts, but that isn't the focus of his current national crusade.
Over the past year, the point Howard has been making repeatedly on television and radio, in newspaper op-ed pieces, at conferences -- and last month in a brief before the Supreme Court -- is this: What has truly run amok in America is the fear of being sued. The lawsuit culture is eroding everyone's freedoms.
In his latest book, "The Collapse of the Common Good: How America's Lawsuit Culture Undermines Our Freedom," Howard makes his anecdote-loaded case: Fear of being sued infects the daily decisions of every American. "Anytime you are dealing with other people, there is clearly a cloud hanging overhead," he says. "It has changed the culture. Americans no longer feel free to act on their reasonable judgment."
Howard recalls an incident that depicts how pervasive the fear is. When one of his daughters, then 12, was invited to go with a friend on a skiing trip, the family asked him to sign a release waiving their liability. It's increasingly a common practice among parents, he says.
America's lawsuit paranoia is everywhere, says Howard. Churches discourage ministers from counseling troubled parishioners for fear that if something bad happens -- a suicide, a divorce -- they will sue. Employers refuse to give honest references about former employees. Obstetricians decide to no longer deliver babies. Teachers and principals run classrooms fearing legal threats from students and parents. Almost every product has preemptive warning labels.
Howard recounts how the town board of Oologah, Okla., removed the double slide that had been a landmark at its playground for more than 50 years after a child suffered minor injuries. The parents filed a claim but didn't pursue it. "The town council felt so insecure now that they had an incident that they dismantled it and sold it off," says Howard, adding that seesaws and merry-go-rounds have all but disappeared from playgrounds across America because of similar fears. "That's a tragedy. We have created a society paralyzed by legal fear."
Arguing His Case
Howard isn't new to raising common-sense issues. In the mid-'90s, he wrote "The Death of Common Sense," a timely book whose analysis of bureaucratic and regulatory overkill coincided with Al Gore's reinventing-government initiative and Newt Gingrich's "Contract for America." The book landed on national bestseller lists.
A year ago, Howard redoubled his offensive against the unreasonable society with the publication of "The Lost Art of Drawing the Line," which called for sanity in the legal system. But his voice was drowned out by the events of Sept. 11, so Ballantine Books rushed to release a revised paperback version this spring under a snappier title: "The Collapse of the Common Good."
Meanwhile, in April, hoping to spark a national movement, Howard launched Common Good, a nonprofit organization dedicated to restoring common sense to settling differences.
Looking for nonpartisan consensus on its advisory board, Howard recruited leaders from across the political spectrum -- liberals such as former Democratic presidential candidate George McGovern and former Democratic senator Paul Simon, and conservatives such as the American Enterprise Institute's Christopher DeMuth and former Republican congressman Gingrich.
"Our organizing principle is to convene the leaders of America -- university presidents, heads of hospitals, deans of medical schools, retired political leaders -- behind the idea that we have to change our legal philosophy," to restore judicial authority over who can sue for what, Howard says.
Common Good's first order of business: medical malpractice suits. "Healthcare is suffering a nervous breakdown," and the public is clamoring for its reform, Howard says. "The only question is, what will it look like?"
In his June keynote address at the American Medical Association's national conference, Howard proposed a special medical court to filter worthy malpractice suits from frivolous ones.
That was but one speech in a busy talk-circuit schedule. He is now averaging an appearance a week, ranging from President Bush's forum on the economy in July to the Brookings Institution's forum on healthcare reform next month. Besides appearances on talking-head shows such as "The O'Reilly Factor," he has been a regular on CNN's "Lou Dobbs Moneyline" since May.
And last month he brought his argument before a more venerable audience. He filed a friend-of-the-court brief with the U.S. Supreme Court, lending support against a "crazy case," he says, in which State Farm Insurance was held liable for $145 million in punitive damages where actual damages were $911. The reason: The insurance company was said to have caused emotional distress by making the plaintiffs suffer through years of litigation.
"If justice tolerates these wild verdicts, people in the back of their minds think it might happen to them, too," Howard says.
At his New York office, Howard keeps a cartoon of a seesaw. Weighing down one side is a huge character labeled "individual rights," and on the other side is a small character labeled "the common good" -- who is flying off the seesaw.
"Forty years ago, we had a society in which the institutions of authority ignored many ingrained problems -- racism, sexism, environmental problems and such -- and the seesaw went too far in one direction," he says. "And then, trying to correct those abuses, we tried to create a new and perfectly fair system in which the people in authority could no longer make value judgments unless they could prove them. And that has caused the seesaw to go all the way to the other side."
In theory, Howard contends, each dispute is resolved as a matter of individual rights, with the claimant proving his claim, or not, before a jury. In reality, too many litigious disputes can't be proved. (How do you prove a seesaw is too risky?) They require value judgments that juries can't make, or don't make consistently, he says. The result is à la carte justice and a vacuum of authority, which has been filled with people using law for selfish ends.
"People use it to keep their child from getting a failing grade, and they use it to get money whenever there's an accident," says Howard. "Now they're suing fast-food restaurants for making them fat. The victims have ended up victimizing the rest of society, and lawyers have become entrepreneurs of legalized extortion."
A 1999 survey of high school principals found that 31 percent had faced lawsuits or out-of-court settlements within the past two years -- up from fewer than 10 percent a decade ago. And the impact on healthcare is even more troubling. Not that all malpractice suits are frivolous, says Howard, because doctors do make mistakes. But it is hard to find a doctor who has not been threatened with an unwarranted suit.
Surveys show that one out of four doctors in certain specialities has been sued. Some hospital maternity wards and trauma centers have closed because of skyrocketing malpractice insurance rates. A recent Harris poll found that 83 percent of physicians said they didn't trust the legal system.
The greater cost, however, is so-called defensive medicine. "It's all the unnecessary and often harmful tests and procedures and medications that doctors prescribe because they feel that they have to be able to prove they did something in case someone sues," Howard says, estimating that those unnecessary actions squander more than $100 billion annually.
"Most doctors win when they are sued. Juries generally get it right," adds Howard. "But if the odds are one out of seven of getting a crazy verdict from a jury, those odds are worse than a test pilot's. Doctors don't want to take the risk of ruin."
The solution? Howard says it starts with recognition that nobody has a constitutional "right to sue." Suing is using governmental power against another citizen or institution, he says. "That's the reason it's called a lawsuit and not a 'go-for-whatever-you-want suit.' The judicial system is supposed to determine who can sue for what, but it doesn't."
Howard has never favored setting ceilings on damage verdicts, like many tort reformers, because he says it would also limit worthwhile suits. But he supports as "sensible" President Bush's call in July for federal legislation limiting damages in malpractice cases to actual costs, lost income and $250,000 for "pain and suffering."
And throughout the legal system, he wants judges to "take back authority to draw the boundaries of who can sue for what, in the common-law tradition," with those decisions always subject to appeal. But Howard says he doesn't have all the answers. That's Common Good's job. "I want the people who've spent their lives worrying about how to create a better system of justice to do that."
A Chorus of Objections
Opinions inside the legal system and out are mixed on Howard's initiative. CNN's Dobbs thinks his weekly guest has struck a nerve with viewers.
"He has created an initiative that is important in the public debate," says Dobbs. "How far will we let punitive damages take us? And what are the proper limits of the courtroom? Phil and Common Good are the most important representatives of this side of the argument."
But critics rail that Howard is "a shill for corporate America." In his national legal newsletter last month, Alabama litigator Jere Beasley called him the "new stalking-horse for tort reform" and castigated Common Good as having "the sole purpose of protecting corporate wrongdoers."
Carlton Carl, spokesman for the Association of Trial Lawyers of America, contends that Howard's firm represents corporate defendants in major cases of product liability and misdeeds -- such as tobacco companies. "He is doing what lawyers are supposed to do," says Carl. "Representing clients."
Critics also say that the case Howard makes relies on anecdotal descriptions of atypical lawsuits to shock the public and provoke the kind of fear of being sued that he says is the problem. "He looks and sounds reasonable, but then he speaks anecdotally and nobody ever challenges these people," says Carl. "How often does this really happen? Don't judges have the authority to throw out frivolous cases and don't they do it every day?"
Consumer activist Ralph Nader, at the Center for Study of Responsive Law, calls Howard "an empty vessel" and says the lawsuit crisis Howard carps about doesn't really exist. "His books are a complete mythology," he says, pointing out statistics from the Justice Department and various think tanks that show the number of tort lawsuits has dropped steadily since 1996 in state and federal courts.
"Quite a crisis, huh?" says Nader. "In other words, he doesn't have a factual foundation. He's into psychiatry, not facts. He relies solely on this fear factor. You know what a frivolous suit is? It's any lawsuit against 'us.' "
Joanne Doroshow, executive director of the Center for Justice and Democracy in New York, says Howard's argument -- that judges need to take back authority to decide which suits get their day in court and which don't -- shows contempt of the jury system that's fundamental in American law. And ultimately, she adds, his fix would hurt legitimate claimants. "There isn't a single tort reform that Phil Howard or anyone else can propose that targets only frivolous lawsuits," she says. "They take everybody down with it."
Whether Howard is "a tort deformer," as Nader calls him, might be arguable, but he's no empty vessel.
Tall and engaging, resembling the late actor Jimmy Stewart playing the homespun defense lawyer in "Anatomy of a Murder," Howard was raised in eastern Kentucky, the son of a Presbyterian minister, which may explain some of his evangelical zeal. He graduated from Yale and the University of Virginia School of Law. In 1983 he founded his own Manhattan merger-boutique law firm, which he headed until Covington & Burling bought it out three years ago and named him vice chairman.
Which raises the corporate-America shill allegations. Howard says simply, "That's not true."
His law practice has always been corporate mergers and still is with Covington & Burling, which he concedes does represent some of the nation's largest companies.
But, he says, "Covington & Burling is not financing Common Good," and his books and Common Good arose from his dedication to public service, not his legal work.
While living in the same Gramercy Park neighborhood for 27 years, where he and his wife, Alexandra, raised four children, he has held numerous civic positions.
Currently he chairs the Riverside South Planning Committee working to extend Riverside Park 12 city blocks. Since 1997, he has chaired the Municipal Art Society, a nonprofit that works to enrich the culture, neighborhoods and design of New York City, and this year he led the citizens committee that organized the memorial "Tribute in Light" at the World Trade Center site.
"I don't think anything in my past suggests I've been doing this for ulterior purposes," Howard says, adding that suggestions that Common Good's advisory board is chained to corporate deep pockets are also misguided. "It is hard to imagine a more credible and distinguished board."
To complaints that his latest book is more anecdotal than factual, Howard refers to the 217 footnotes. Statistics, he says, can be used to prove anything.
"The central theme of the book is not about the litigation explosion," he says. "It is about the fear and unreliability of litigation. . . . The truth of the broader point will be demonstrated not by facts and figures but by whether they are true in the experience of the reader."