Dobbs, Dan B.

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Maryland Law ReviewVolume 46 | Issue 1 Article 6Can You Care for People and Still Count theCosts?Dan B. DobbsFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Litigation CommonsThis Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted forinclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contactsmccarty@law.umaryland.edu.Recommended CitationDan B. Dobbs, Can You Care for People and Still Count the Costs?, 46 Md. L. Rev. 49 (1986)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol46/iss1/6CAN YOU CARE FOR PEOPLE AND STILLCOUNT THE COSTS?DAN B. DOBBS*Marc Galanter, whom I do not know but wish I did, compelsyou to take him seriously. I react to almost every paragraph hewrites; and for this reason, the editors of the Maryland Law Reviewwere wise to request the briefest of comments. The limit of thecomment, however, should not be taken to reflect a limit either ofinterest in his work or of the seriousness with which I take it.I.First, let me say I agree that litigation can produce wonderfulresults of the kind Professor Galanter describes and illustrates in hislast pages. If his article had been addressed to members of the pub-lic, or to interest groups that consistently attack lawyers and litiga-tion-doctors' groups, for example-I would have been morecomfortable with its enthusiasm for the benefits of litigation. Thearticle seems intended to redress what Galanter perceives to be anoveremphasis on the costs of litigation. But we lawyers have on thewhole always thought rather well of our profession and itsprocesses. Whatever may be Professor Galanter's inner premises,his conclusions represent what, after all, we really want to hear: thatour life's work is a noble thing. We lawyers already believe that liti-gation has important benefits; perhaps we need to be reminded thatlitigation has important costs as well.In truth there are costs to litigation that parallel its benefits-both tangible and intangible costs. No one knows how much litiga-tion's tangible, financial costs really are. The figures range fromweak to almost nonexistent.' National standards of accounting forpublic litigation costs do not exist.2 Even when states do furnish* Rosenstiel Professor of Law, University of Arizona College of Law. B.A., Univer-sity of Arkansas, 1953; J.D., 1956; LL.M., University of Illinois, 1961; J.S.D., 1966. Co-author, PROSSER AND KEETON ON THE LAW OF TORTS (5th ed. 1984); author, HANDBOOKON THE LAW OF REMEDIES (1973). The author gratefully acknowledges the assistance ofAnnette Morris in the preparation of this comment.1. There is a good study necessarily extrapolating from limited data. SeeJ. KARALIK& R. Ross, COSTS OF THE CtVILJUSTICE SYSTEM (1983) [hereinafter KAKALIK & Ross] andthe helpful summary and review, Brunet, Measuring the Costs of Civil Justice, 83 MICH. L.REV. 916 (1985).2. The authors of KAKALIK & Ross had to be content with data from only threeMARYLAND LAW REVIEWsome limited kinds of reporting on costs of court systems, these re-ports may or may not take into account expensive items such as am-ortized costs of building a courthouse, or maintaining it. Ways offiguring costs of retirement systems for judicial personnel, or courtlibraries, may differ. Public accounting ignores some costs alto-gether. Certainly some "overhead" costs of the legal system, suchas the public costs of law schools, are not considered. The result isthat we have inadequate information about costs, but we can be surethe totals are substantial.'Costs paid by litigants-and then often passed on to consum-ers, many of whom never litigate about anything at all-are evenhigher. Although no one really knows, Cutler's estimate 4 that thelegal profession, in money terms, is bigger than the electric powerbusiness could be correct. To say so does not suggest that the costsare not worth it; that is another inquiry, and one that would have tobe accompanied by some assessment of alternatives to those costs.But it is certainly not true that litigation-or the legal system as awhole-is without substantial direct financial costs.And just as there may be less tangible benefits of litigation,there may also be less tangible costs of litigation. Such costs couldbe investigated more or less empirically, although I remain uncon-vinced that every part of the floating world must be subjected tosocial science studies as it passes by. In any event I doubt that thereis any more reason to deny that there are intangible costs than todeny that there are intangible benefits of litigation.What could count as costs in the intangible sense? Just as litiga-tion might induce potential defendants to provide a more appropri-ate level of safety (the Madison Parks example), litigation may alsoencourage defendants to provide more safety efforts than would bedesirable, thus increasing private costs and sometimes even increas-states and a federal district court because discrepancies in the way figures were reportedmade it difficult or impossible to compare others. Id. at viii.3. Public costs in trial courts of superior jurisdiction were estimated in KAKALK &Ross at over $2 billion for fiscal year 1980. Id. at xix, Table S.9. This excludes manytrial courts such as municipal courts. Given some of the problems of making the esti-mate, the figure may be rather conservative. In addition, there are items not listed thatperhaps should be considered, in part, as costs of litigation. Prison libraries, for exam-ple, might fall in this category. Two billion dollars is of course a relatively small sumcompared to, say, the defense budget; but as the saying goes, a billion here, a billionthere-after a while it adds up.4. Cutler, Conflicts of Interest, 30 EMORY L.J. 1015, 1016 (1981) (estimating lawyer'scharges at $30 billion annually). Crampton, The Trouble with Lawyers (and Law Schools), 35J. LEGAL EDUC. 359, 360 (1985) suggested that the figure is closer to $40 or $50 billionannually. Neither estimate purports to be based on a rigorous empirical investigation.[VOL. 46:49DOBBS: COMMENT ON GALANTERing actual hazards. The doctor practicing defensive medicine, forexample, may order additional operations in an effort to providemore safety; but this may increase the risk that the patient will suc-cumb to a properly administered but wholly unnecessary anesthetic.Similarly, the university administrator, fearing suit by a teacherif tenure is ultimately denied, may actively avoid any good com-ments in the teacher's file. The administrator may adopt a stancemy colleague Kenney Hegland calls "instant adversarialness"-ef-fectively denying the young teacher the support needed to developinto a good teacher and scholar.Or the publisher, under constant threat of suits for libel or inva-sion of privacy, may censor itself rather than run the risk of the veryhigh judgments sometimes secured in defamation cases-or thelegal costs of defending.5 If the potential for litigation induces theyoung gentlemen of a Princeton eating club to take their meals inthe presence of women, a practice I feel sure will not prove harmfulto their personal development, then the potential for litigation mayequally induce newspapers to become their own censors, a practicethat is most distinctly harmful to a free society.There are many kinds of costs that can flow from litigation.Some kinds of claims offer potential recoveries so great that manypeople may be induced to assert them, even though the win-rate isvery low. But if one out of every ten plaintiffs is able to win such aclaim, that means nine out of ten defendants must pay attorney feesand other expenses of suit even though they are entirely innocent.The innocent nine are hostages for the liability of the tenth. Thecosts to them in money and in life disruption may far exceed thegains to the one plaintiff. I count this a very high cost indeed. It willbe difficult to estimate such a cost, perhaps impossible to estimate itby social science methodology. But whether injustice to the inno-cent hostages is sufficient in any given class of case to outweigh thebenefits of litigation, that injustice is a real cost that ought to beassessed, along with other CoStS. 65. Avoidance of self-censorship in defamation cases was the aim of New York Timesv. Sullivan, 376 U.S. 254 (1964). Although the rule in Times-Sullivan has been substan-tially undermined by the vacillations of a divided Court as well as by decisions of lowercourts, the ideal that censorship is to be avoided has not itself been questioned.Whatever the shimmering rules of the moment, then, self-censorship must be countedas a cost.6. This is no place for development of the idea sketched out freehand in this para-graph, but I should notice one strong counterargument. All of us have the right to sueand, somewhat reciprocally, the liability to being sued. A defendant, who may use thecourt system as a plaintiff or counterclaimant, has no reasonable claim that she is being1986]MARYLAND LAW REVIEWThere are other intangible costs; readers who practice law willthink of some of them. I do not believe we should ignore the costsin litigation any more than we should ignore the benefits. ProfessorGalanter does not counsel us to ignore the costs, but I think hisfocus is so strongly upon the benefits of litigation as a potentialweapon for those without power that he does not give adequate at-tention to the costs-which surely must ultimately be considered ifthe legal system is to improve. Improvement is a goal I think wemight entertain even if we do not think that over-litigation is a "por-tent of doom."II.Second, as to the thesis I take to be central in Professor Ga-lanter's present article: litigation has not increased substantially,but if it has increased, there are very good reasons for it-much ofwhat I have said in comment on the last portion of the article isrelevant here as well.Perhaps here we should arm ourselves against statistics andagainst Professor Galanter's candor in admitting that figures are un-trustworthy. I say we should arm ourselves, because while he dis-counts some of the figures, he does not seem to discount themequally.' But I think we should discount them all for a variety ofreasons, not the least of which is that the number of cases filed incourt is probably a rather poor index of the real amount of litiga-tion.' Many claims are pursued successfully without filing at all, be-treated unjustly merely because she is sued. But as the plaintiff's claims become lessand less justified-as we approach the one-in-ten ratio of success-reciprocity ceases tojustify the costs imposed upon the innocent defendant, as the law of malicious prosecu-tion would imply. You might not find injustice until reciprocity has significantly dimin-ished, but you would surely have to say there are "costs" long before that-at least inany case in which the costs imposed upon innocent defendants exceed the gains to thewinning plaintiff.7. The different ways in which figures are used may be characteristic of social sci-ence writing. In this case, Galanter, I think rightly, tells us that "figures like litigationrates are theories, [and] especially slippery ones . " Galanter, The Day After the Litiga-tion Explosion, 46 MD. L. REV. 3, 15 (1986). He makes the point to warn us that the greatpercentage increases reflected in his Table 2 should not be taken at face value. Butelsewhere he not only develops a mass of figures, he appears to build parts of his plat-form from them. Thus he concludes that "some kinds of cases are increasing whileothers are decreasing" (id. at 8)-a conclusion he reaches in spite of slippery figures andin spite of the added concession that the number of cases filed does not provide a "satis-fying measure of litigiousness." Id. at 7. It appears to me that Galanter found a differ-ential in slipperiness of the figures. My view is that none of the figures should be takenas dispositive.8. Elsewhere Galanter suggests that we "visualize litigation as the arrival at courts[VOL. 46:49DOBBS: COMMENT ON GALANTERcause litigation itself is a threat and sometimes a very one-sidedthreat. Perhaps more important, the amount of litigation activity inclaims actually filed undoubtedly has increased in the past genera-tion as lawyers have engaged in very substantial discovery and mo-tion practice. Even if the figures submitted about caseload and casefilings should be taken as accurate, then, they should not be taken asrealistic estimates of judicial activity.More than this, Professor Galanter's conclusion that "[h]ighercaseloads do not represent a heightened appetite for adversarialcombat," is not one that rests on figures at all, in spite of the factthat figures dominate most of the discussion in the first portions ofthe paper. We should not, in other words, take it that the conclu-sion has been proven by facts or figures merely because figures ap-pear in great quantity.But more important to me than any of this is the question aboutwhy there is a question. In the end Professor Galanter seems togrant that the caseload is "heightened" but seems to insist that it isonly "heightened," not overwhelming. The real meat of his conclu-sion, however, is his speculation about why people perceive a litiga-tion explosion. He believes that people find a litigation explosionbecause they do not like what they see in the results-more regula-tion, more liability for the "haves," and more "rights" for the"have-nots." I think his speculations are at least partly correct, buttheir correctness and importance are wholly unrelated to whetherthere is in fact a litigation explosion.In fact, though it would be interesting to know whether litiga-tion is increasing in some sense, I think that may be far less signifi-cant, even for Professor Galanter's own conclusion, than some otherissues related to it. Even if litigation filings had not increased at all,litigation costs are certainly up. If, as Galanter asserts at one point,most claims are settled without "full blown" litigation, today's mo-tion practice consumes time and money in excess of many "fullblown" trials a generation ago. Even unbiased observers mightof disputes ...." Galanter, Reading the Landscape of Disputes: What We Know and Don 'tKnow (And Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L.REv. 4, 11-12 (1983). If litigation is merely the arrival of a dispute in court, the numberof cases filed is the only index to litigation. But while this definition provides somethingmore or less measurable by social science methods, it does not permit even an estimateof what is going on after the arrival of a complaint in the clerk's office. And it wouldexclude what lawyers think of as litigation-those "cases" that are being seriously inves-tigated, researched, and negotiated, but that have not been "filed" in court. I do notread Galanter's present article as attempting to define litigation so narrowly.1986]MARYLAND LAW REVIEWthink that this is a meaningful increase in litigation, no matter howmany actual complaints are filed.But even if the number of cases filed had not increased one iota,even if costs had not increased, litigation might still be too expen-sive either in tangible costs or intangible costs or both. Even if costsand filings had remained constant, litigation might have been tooexpensive all along; or it might have become too expensive in thelight of other social needs or in the light of alternative solutions tolitigation. What are the real costs of litigation? Are they too muchin the light of benefits and alternatives? Those are, I think, moreimportant questions than increase in litigation as such.We need to be willing to improve the system for which we aslawyers and judges are, more than any other group, responsible. Itis worthy to recognize its values, but it is also worthy to recognizethat improvements might be made-not merely for the benefit ofthe "haves," but for the benefit of everyone. If I read him rightly,Professor Galanter sees the legal system as an equalizer or potentialequalizer in which those without power have at least a chance atjus-tice.9 In my view this is true and worthy. But to perceive this impor-tant liberal value of the legal system does not require us to back intothe view that is the most conservative view of all-that everythingthat is, is right. The legal system is not perfect. There are costs toour system and we ought to identify them. We may differ aboutwhen costs are "too high," but we cannot even begin the task ofimproving litigation without focusing on costs as well as on benefitsof litigation.9. "Law is a way to control and hold accountable remote and overwhelming ac-tors." Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3, 14 (1986).[VOL. 46:49

Can You Care for People and Still Count the Costs?

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