Does a Litigious Culture Undermine Our Capacity for Humility?
When we speak of the ills of the American civil justice system, we tend to fall back on a few familiar themes. We cite the economic harms of litigation: the way it worsens the business climate, leads doctors to order unnecessary tests, and so forth. And we criticize persons who file meritless complaints - a criticism that comes easily to most of us, knowing our own grievances to be meritorious.
So far as it goes, this critique is accurate enough. Yet it is also badly incomplete. It doesn’t include some of the less tangible damage, both to society and to inward qualities such as our capacity for humility.
Consider what the best-remembered American lawyer of the nineteenth century had to say about unnecessary suit-filing:
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 peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
Never stir up litigation. A worse man can scarcely be found than one who does this. … A moral tone ought to be infused into the profession which should drive such men out of it.
Thus Abraham Lincoln, in his “Notes on a Law Lecture.” Between Lincoln’s critique and ours, to be sure, there is much overlap. Like us, Lincoln is keenly aware of the cost of litigation. (Most likely he was familiar with Voltaire’s epigram: lawsuits have ruined me only twice, when I lost and when I won.) Long before the emergence of our modern class-action lawsuit, the future President also knows well that some quarrels arise only because lawyers have dreamed them up.