"Greedy lawyers" and "frivolous lawsuits"
We constantly read articles by commentators who condemn "greedy trial lawyers" as one of the great evils with which our society is plagued. The label is too often reflexively used. The role of money as a motivator in litigation deserves more thoughtful analysis than it is usually given.
Let us engage in some semantic deconstruction of the word "greed".
Greed is well known as one of the Seven Deadly Sins. Most of the others -- envy, gluttony, sloth -- are fairly easy to understand, if phrased in somewhat antiquated terms. Some of them are vices only when they represent excessive indulgence in natural and positive impulses. Man must eat to sustain himself, but eating too much, on a regular basis, is condemned as gluttony. But greed cannot simply be regarded as "wanting too much money". People like money, and there is surely nothing wrong with that. Other than those who claim that poverty is a virtue (because they are poor themselves), most of us feel that not having enough money to provide for one's worldly needs is a condition to be avoided, and that a person of ability and good character should take steps to remedy that situation.
Is it even possible to want "too much money"? Most people want to have more money than they currently have, but that is not an inherent evil. Indeed, it is the basic motivation which drives the capitalist system. Endeavor, striving, and hard work in pursuit of profit will lead in general to more productivity and a better standard of living for all -- that is our belief. Under our system, there may not be such a thing as "too much money".
It is worth noting that Mohandas Gandhi, who was a lawyer as well as a deeply spiritual person, identified as one of his seven alternative deadly sins, not the desire for wealth, but "wealth without work".
Perhaps a better description is "wanting money too much" rather than "wanting too much money". One definition that has been given is "the desire for material wealth or gain, ignoring the realm of the spiritual." Although the desire for material wealth can be regarded as a good thing, an exclusive focus on material gain, disregarding the individual's spiritual needs, is worthy of condemnation.
The sin of greed, as most of us understand it, is not simply the desire for money and material wealth. Rather, we think of it as a quest for worldly gain which ignores considerations of morality and virtue. (Indeed, another item on Gandhi's list was "commerce without morality".) The term focuses on the way that a person seeks to make money, not the fact that he is engaged in activity for the sake of profit. As with other areas of human work, the path that is followed is as important as the destination. If a person accumulates wealth as a result of misconduct, such as lying, cheating, or stealing from others, his actions should be condemned for that reason, not because he desires wealth. If he accumulates wealth as a result of his hard work, intelligence, and enterprise, he should be applauded and emulated.
How do these thoughts apply to litigation?
A lawyer who represents a plaintiff will often be paid handsomely, but only if he secures a money recovery for his client. (Let's disregard the special issue of class action cases for the purpose of this discussion.) And there is nothing inherently wrong with a plaintiff's attorney's motivation to get as much money for his client as he possibly can. For him, that is the very definition of "zealous representation of the client". The defendant's attorney, by contrast, wants to let his client keep as much of his money as he can, and that is the definition of zealous advocacy on his side. Under our adversarial legal system, the right path is to be found as a result of the conflict between these competing efforts, and to find it we entrust the decision-making to a selected group of our fellow citizens.
The desire for a large monetary recovery is not an evil in itself, any more than is an executive's desire for a large compensation package. In the world of business, most of us condemn the CEO of WorldCom but applaud the CEO of IBM, both of whom are enormously wealthy men but who got their wealth in vastly different ways. When it comes to litigation, society should condemn those lawyers who gain a recovery for a client by dishonest and nefarious methods, but not those who do so in the legitimate pursuit of a jury verdict in a court case.
The trouble is, virtually every instance of the phrase "greedy lawyers" is an ad hominem attack, used to discredit a lawyer who is trying to secure a verdict for a client in a lawsuit, without any consideration of whether there is anything dishonest or unethical about his behavior. Unless the lawyer is acting dishonestly, his desire for a large payday is in no way worthy of contempt -- as long as the claim has some arguable merit.
There is the rub. Many commentators inveigh against "frivolous lawsuits", but with some well-publicized exceptions, there is very little truly frivolous litigation going on in our courts. Although there are cases filed where the argument seems to be somewhat thin, most cases have some degree of arguable merit, and very few are clearly frivolous. Most plaintiff's attorneys, who have to front the costs of their client's lawsuits, are pretty selective about their cases and are not willing to take on a marginal case, much less a frivolous one.
Ultimately, what is being castigated are the merits of the claim, in one way or the other. But our legal system has a number of safeguards to protect against a recovery in a marginal case or in a case without merit. A skilled defense attorney and a willingness to defend cases that should be defended are necessary to invoke those safeguards. A knowledgeable and courageous judiciary is likewise needed, to ensure that the law's safeguards are properly applied.
We are not naive. We do not claim that those safeguards always work. Sometimes they do not. Overall, however, the adversarial system is pretty good at screening out frivolous lawsuits and marginal claims. It will work properly, however, only if the defendant and his attorney are willing to take the case to trial before a jury in open court.
Most of the evils that we decry when it comes to civil litigation are not those which have resulted from verdicts by juries, but rather have followed from a decision by a timid defendant to settle a case when it should have been aggressively defended. The Tobacco Settlement is Exhibit A in support of that point.
The tobacco companies, in giving in and agreeing to pay huge sums of money to the states in settlement of their ridiculous claim for reimbursement of medical expenses paid for smoking-related illnesses, have done widespread damage to many of the political, social, and economic institutions in this country. They have paved the way for other interest groups to try to follow their example to use the courts in an effort to effectuate policy changes that they could not make in the political and regulatory spheres -- where those issues are properly handled. The money that has flowed to the states has disrupted their internal politics, and here in Michigan we have seen the negative effects in our political processes this year. One of those effects, interplaying with the Governor's veto of legislation early this summer, ended up costing Michigan hospitals millions of dollars of Federal money, crippling them in an economic environment where money is not exactly free-flowing. (Legislation passed later this year and signed by the Governor did restore the funding earlier vetoed.)
Ultimately, we are likely to find that the Tobacco Settlement has in many ways truly been a pact with the devil. These effects, not the claims of the attorneys who represented the states -- who after all are simply asking the courts to enforce the contracts for their compensation that were freely and eagerly signed by the states in their zeal to secure a recovery -- are perhaps the true examples of the effect of "greed" on our legal processes.
5:40:17 PM 
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