1 Hansen v. Hansen, 608 P.2d 364 (Colo. App. 1980). See also 64 A.B.A.J. 961 (1978); Lori B. Andrews, Kids vs. Parents: What Makes Johnny Sue? Chicago Sun-Times, Mar. 14, 1981, at 67.Google Scholar

2 Jerold S. Auerbach, A Plague of Lawyers, Harper's, Oct. 1976, at 42.Google Scholar

3 Id.Google Scholar

4 Marlene Adler Marks, The Suing of America: Why and How We Take Each Other to Court 113 (New York: Seaview Books, 1981).Google Scholar

5 Jethro K. Lieberman, The Litigious Society 4 (New York: Basic Books, 1981), citing N.Y. Times, Feb. 27, 1976, at 35.Google Scholar

6 Id. at 8, citing Time, Apr. 10, 1978, at 56.Google Scholar

7 Id., citing Will Lawyering Strangle Democratic Capitalism? Regulation, Mar./Apr. 1978, at 15.Google Scholar

8 Marks, supra note 4, at 103.Google Scholar

9 Although Marks is not a lawyer, the jacket of her book notes that her husband is. 1 certainly hope that tag line was forced upon her by an editor, rather than written by her to try to capture credibility for an osmosis-like familiarity with law. Believing her legal analysis because she is married to an attorney would be like undergoing a brain operation done by the husband of a neurosurgeon.Google Scholar

10 Lieberman, supra note 5, at xi.Google Scholar

11 Id. at 5.Google Scholar

12 Id.Google Scholar

13 Id. at 33.Google Scholar

14 Id. at 34.Google Scholar

15 Across all types of cases, there may be a misperception that the awards are higher than they actually are. Initially, media reports of a case focus on the amount the plaintiffs ask for, which often is far more than any amount they can expect to win. Moreover, even the amount that juries award may bear no resemblance to the final amount that the plaintiffs receive. Marks refers to a number of cases where judges have lowered the jury verdicts significantly or plaintiffs have agreed to settle for less than the jury verdict rather than risk a reversal on appeal. See, e.g., Marks, supra note 4, at 120 ($1.2 million jury verdict in asbestosis case reduced to $250,000 by trial judge).Google Scholar

16 Lieberman, supra note 5, at 49.Google Scholar

17 Id. at 68.Google Scholar

18 H. St. John Crevecoeur in Letters of an American Farmer, quoted in Charles Warren, A History of the American Bar 217 (Boston: Little, Brown, 1912), cited in Lieberman, supra note 5, at 15.Google Scholar

19 Marks, supra note 4, at 110–11.Google Scholar

20 Lieberman, supra note 5, at 14.Google Scholar

21 See, e.g., Auerbach, supra note 2; Laurence H. Tribe, Too Much Law, Too Little Justice, Atlantic, July 1979, at 25; Too Much Law? Newsweek, Jan. 10, 1977, at 42; Those Lawyers, Time, Apr. 10, 1978, at 56; The Rights Explosion: Splintering America? U.S. News & World Rep., Oct. 31, 1977, at 29.Google Scholar

22 Lieberman, supra note 5, at 37.Google Scholar

23 Id. at 39.Google Scholar

24 Nathan Glazer, Towards an Imperial Judiciary? Pub. Interest, Fall 1975, at 118, quoted in id. at 113.Google Scholar

25 Inmates of the Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676 (D. Mass. 1973), aff'd, 494 F.2d 1196 (1st Cir. 1974).Google Scholar

26 Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972), enforcing 325 F. Supp. 781 (M.D. Ala. 1971), 334 F. Supp. 1341 (M.D. Ala. 1972), aff'd in part, remanded in part, decision reserved in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).Google Scholar

27 Lieberman, supra note 5, at 122.Google Scholar

28 Lieberman points out that the “rate of civil filings … remained nearly constant from 1960 to at least the mid-1970s.”Id. at 6.Google Scholar

29 Lieberman points out that although the standard of care in, e.g., specialty cases changed from being that of doctors in the local community to a national standard, “it did not change the basic rule that it was the medical profession which defined the acceptable standard of practice.”Id. at 71. And although development of the informed consent doctrine might be viewed as a change in substantive law affecting doctors, Lieberman points out that informed consent figured in only about 3 percent of the cases, in which only 2 percent of the total payments were involved. Id. at 88, citing National Association of Insurance Commissioners, Malpractice Claims 92–93 (Milwaukee: National Association of Insurance Commissioners, 1976).Google Scholar

30 Curlender v. Bio-Science Laboratories, 106 Cal. App. 3d 811, 165 Cal. Rptr. 477 (1980).Google Scholar

31 Fred Barbash, Courts Increasingly Asked to Rule on Affairs of Heart, Wash. Post, Aug. 18, 1980.Google Scholar

32 Sir Henry Maine, Ancient Law 100 (New York: Dutton, Everyman's Library, 1917), cited in Lieberman, supra note 5, at 20.Google Scholar

33 Lieberman, supra note 5, at 20.Google Scholar

34 83 Wash. 2d 514, 519 P.2d 981 (1974).Google Scholar

35 Epstein, Richard A., Medical Malpractice: The Case for Contract, 1976 A.B.F. Res. J. 87, 113.Google Scholar

36 Lieberman, supra note 5, at 78.Google Scholar

37 Tomkins v. Public Serv. Elec. & Gas Co., 422 F. Supp. 553, 557 (D.N.J. 1976), rev'd and remanded, 568 F. 2d 1044 (3d. Cir. 1977).Google Scholar

38 Lieberman unearths evidence that both product liability insurers and medical malpractice insurers blamed their mid-1970s raise in premiums on increased litigation and large judgments even though they had no sound basis to make that claim. The federal Interagency Task Force on Product Liability found in 1977 that it was “not possible to correlate premium increases with trends in the number and severity of claims.” Lieberman, supra note 5, at 49–50. For one thing, product liability insurance was not offered as a distinct line of coverage until 1978. Id. at 49. In the medical malpractice area, Lieberman makes the claim that “the malpractice crisis was a function of insurer malpractice.”Id. at 85. He points out that insurance companies make money in two ways—through premium income and through investment income. According to Lieberman, although malpractice claims had been rising since the late 1960s, “there was no outcry from the industry until 1973 when the stock market finally soured.”Id. at 84. By 1974, stock market losses of insurance companies totaled $3.3 billion (nearly double that of underwriting losses). That's when the insurance industry “discovered” the malpractice crisis and started raising rates. And, since few state insurance commissioners before 1975 collected statistics about malpractice claims, the industry's assertions went undisputed. Lieberman notes that in contrast to those companies that raised rates after suffering great losses in the stock market, one malpractice insurance company that had a conservative investment philosophy (and thus had no stock market losses to recoup) had only a few rate increase requests, which were in keeping with perceived increases in liability. Id. at 83–85.Google Scholar

39 Id. at 91.Google Scholar

40 Id. at 109.Google Scholar

41 Id. at 7.Google Scholar

42 Lieberman notes that when nature, rather than social institutions, was the force most likely to do harm to a person, litigation was limited by the fact that one couldn't sue nature. Id. at 12. Not only have the social and technological advances provided people with more entities to sue, they have also made life more pleasant, with every difficulty seeming to be an enormous affront. “In a society that takes for granted what to any other age would be considered beyond Utopia, each harm, every source of ill-being, cries out for redress.”Id. at 187–88.Google Scholar

43 It is interesting to note that where other mediating structures such as community values are stronger than they are in the United States, lawyers and lawsuits are less necessary. In an Israeli kibbutz, for example, the sanctions of community opinion obviate the need for a lawsuit. Auerbach, supra note 2.Google Scholar

44 Bates v. State Bar, 433 U.S. 350, 376 (1977).Google Scholar

45 See, e.g., Epstein, supra note 35.Google Scholar

46 For examples of the shortcomings of legislation that has been passed to curb litigiousness, see Lieberman, supra note 5, at 51, 87.Google Scholar