Americans Think the Legal System is Broken. Are They Right?

In late June, new polling data seemed to confirm what many Michigan lawyers have suspected for years: Americans are losing their faith in the justice system. Unfortunately, the attitudes of the respondents reflect an aggressive and long-standing campaign to undermine citizens’ trust.

The study was conducted over 5 days in June and includes 1,000 purportedly registered voters. Eighty-six percent of those responding think Americans are too quick to threaten legal action, and nearly three-quarters (73%) agreed that “[t]he system makes it too easy for dishonest people to make invalid claims.” Most concerning is that 74% concurred with the sentiment that judges should be allowed to throw out cases without legal merit. These statistics demonstrate a lack of public awareness about the nuances of our civil justice system.

For example, 73% of the survey’s participants believe it’s too easy to make a fraudulent claim, yet 67% also felt “[t]he time and trouble it takes to file a lawsuit discourages many people with legitimate cases from going to court.” Apparently Americans are under the impression that meritorious lawsuits are somehow harder to file than fraudulent ones. Inconsistencies like this, combined with the fact that 41% of participants believe that fundamental changes should be made to the legal system, mean the civil justice system is in serious jeopardy.

In fact, the reality of practicing law in Michigan is the opposite of the perceptions shown in this new poll. In many areas of the law, such as medical and other professional malpractice, it is nearly impossible to file a frivolous claim. Procedural hurdles, spiraling expenses, and limitations on damages have resulted in fewer and fewer cases being filed. Not only that, but our courts are now disposing of cases more efficiently than in years past. Since 2002, the Michigan appellate courts have had a clearance rate of about 100% or greater, meaning more cases are being closed than opened. The vast majority – 97% in 2011 – were less than 18 months old at the time of disposition.

So what’s the root cause of these inconsistent and even incorrect notions about our legal system? Insurance companies and the Chambers of Commerce have spent untold fortunes trying to convince the public that a handful of people are trying to game the system for individual gain at the expense of everyone else, never mind the fact that Fortune 500 companies sue each other all the time over insane sums of money. For these monolithic corporations, each multi-million dollar verdict is a chance for them to say “we told you so!” The only reason these verdicts are newsworthy is because of their rarity – the public never hears about the thousands of victims who receive little or no compensation for their injuries. The notions that lawsuits are lottery tickets and being injured is a good thing have entered the public consciousness and provide ubiquitous comic fodder. Our centuries-old promise of a jury trial has become a joke.

We, as lawyers, need to do a better job of educating the public about the law. The preamble of the American Bar Association’s Model Rules of Professional Conduct remind us that we “should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” When all the public hears about the civil justice system is negative, why are we surprised that people think the system is broken and needs fundamental changes? Who’s being naïve, the members of the public or the members of the bar?

The system isn’t broken, but it’s straining. Insurance companies and the Chambers of Commerce are putting the civil justice system to the test by spending a mind-numbing amount of money to convince people not to trust our courts. The good news is that we have the ability and the opportunity to change this. By explaining the law and its application to individual cases, we can help educate our community about the civil justice system. Armed with this knowledge and confidence,we can restore faith in the American legal system, faith that has been eroded by decades of misinformation.