In Defense of Litigation
Dignity, reason, order, freedom, security . . . litigation gives voice to society's values—and its weaknesses.
In my chosen profession, litigation means two things: first, someone hasn’t done their job properly, and second, new work is available for someone else. Litigators at large firms often joke that the transactional or commercial lawyers “feed” the litigation group, implying that because someone didn’t think of every loophole when writing a contract, there is now a dispute, something to litigate, and that means more hours to bill.
But if you’re not a litigator or expert witness, the sound of a court filing isn’t exactly music to your ears. It means a lot of time, a lot of money, a lot of paper and legalese. Even two years after Obamacare was passed in the U.S., it’s still not uncommon to hear that the better way to reduce healthcare costs would be to reform tort law so that doctors and hospitals didn’t face such steep premiums for malpractice insurance. Those awful ambulance chasers! The litigious tendencies of our society are blamed for all number of ills and inconveniences—our children can’t go jump on the neighbour’s trampoline unless we’re there to watch them; some hypothesize that the reason those ubiquitous AEDs are so rarely used is that bystanders fear liability if they use them incorrectly.
And yet, imagine a society where most individuals do not have access to legal recourse. It may be difficult for North Americans to envision, but as Gary Haugen of International Justice Mission pointedly says, in countries without functioning public justice systems, “the great legal reforms of the modern human rights movement often deliver only empty parchment promises to the poor.” As Haugen explains in the article “And Justice for All,” evils like abusive labour practices and child rape continue unabated even in countries with good, protective laws— until individuals can mount effective legal challenges when their rights have been violated. Many developing nations don’t recognize a right of representation for indigent persons, so those who cannot afford legal representation have to go without. To make matters worse, in some countries, such as Zambia and Cambodia, the total lawyers in the country number in the hundreds, which may not sound so bad unless you’re a widow whose land has been stolen or a small-business owner denied a business permit because he won’t pay a bribe to an official. Even if you are lucky enough to be able to afford an attorney, the odds of finding one are long in a country where there is only one lawyer for every 25,000 people or so.
Indeed, when members of free societies in the west criticize the lack of rule of law in other countries, limitations, both formal and practical, on the rights of individuals to plead their case before a court are some of the prime grievances listed. As much as we may deplore the eagerness with which some rush to sue—or with which plaintiff’s attorneys solicit business— there is something in our societal intuitions that desires the opportunity to advocate the rightness of our position and have our say before an impartial judge. While the availability of legal remedies may have some unpleasant consequences (ambulance chasers again come to mind), the persuasive power of litigation is a mechanism of justice that protects the rule of law and is completely necessary to the western political system. Freedom of religion, expression, and the vote—even the security of one’s property and person—mean little without that safeguard. The necessity of litigation may be disheartening, but its benefits merit it respect, even praise.
Litigation assumes that the parties cannot resolve their differences on their own, but that a disinterested third party will decide between the persuasive arguments of the parties. The courtroom may be unique among venues for persuasion in its neutrality. The litigant’s task is not to negotiate with her opponent, or win over an object with his own previous commitments and loyalties. Instead, just courts go to great lengths to select juries without a bias against or in favour of one of the parties. Each party is afforded the opportunity to plead his case before a neutral judge and jury. It is a place where evidence used to support arguments must be relevant, reliable, helpful to deciding the question, and not unfairly prejudicial. Being in a courtroom requires playing by the rules—lots of rules—but this inconvenience is embraced because it expresses a preference for fairness.
Curtailing Decision By Caprice
It would be fair to ask why the adversarial system is a good thing. Why does it matter if individuals can advocate their position and interests in a court of law? It is conceivable that wise, neutral judges could be selected and charged with reviewing the facts of disputes before them and deciding the case without hearing or reading arguments from the parties. Assuming the judge somehow could obtain all relevant evidence for the case without the adversaries presenting it, why should she or a jury require the theories of the plaintiff or the defendant? If we agreed to play by those rules, would courts be less fair or just than our adversarial system that invites arguments and theories? A just decision maker might decide the case according to her own notions of fairness, the meaning of the relevant statutes, and perhaps his knowledge of similar cases.
That judge would be burdened with a heavy load of research, particularly if she is to decide “like cases like.” If she has never personally decided a similar case, the challenge of finding how other judges have ruled in similar cases falls to her. Perhaps in some cases, the judge would find a case directly on point, but suppose there is not one that answers exactly the question she faces: How should she decide which cases are close enough to bear upon her decision? Without the suggestions and theories of the parties, she has only her own imagination or first impression to direct her search. Righteous as she may be, the judge is not all-knowing, and unlike the litigants whose personal freedom or livelihood depend on her decision, the judge may lack motivation to exhaustively consider, imagine, and discover every possible way she could view the facts of the case before her. By presenting her with options in the form of case law and legal theories, the parties ease her burden, and may expand her knowledge and perspective on this particular area of the law. The net impact is that the judge makes a ruling in the case based upon arguments and reasons, not upon idiosyncratic preferences or instinct.
Yet when a judge does abandon argument as the basis of his or her decision, observers can detect that by applying their own rational faculties to the case. Without the assistance of the arguments by respective parties, this departure from reason and precedent could be missed.
Not only does the persuasion applied by advocates appear to curtail decision by caprice, it also allows the public to follow the thought process of the judge by reading his published opinions. Deciding from argument invites individuals to engage in legal reasoning themselves, and allows future litigants to see which arguments are persuasive and which questions remain open. It opens possibilities for the imaginative litigator to introduce new arguments with some indication of how receptive the court might be to them. In other words, the adversarial legal system does not just allow but invites citizens to engage with it. Litigation affords any citizen with a legal wrong (and legal standing) the opportunity to shape the law. In theory, anyone’s case could influence the state of the law on that point. Individuals who make arguments in litigation act back upon the laws that govern their lives.
Consider a case recently argued before the United States Supreme Court. The Court is currently considering a workplace harassment suit. Under the governing law, the employer is liable when a “supervisor” harasses a subordinate. The case before the Court turns on the legal definition of supervisor, and in this case, both parties argue that definition used in the jurisdiction is too narrow, and put forth their own broader definitions. Unsurprisingly, the employer’s definition is still narrow enough to absolve it of liability in this particular case but it’s unusual that the employer does not choose to rely on the settled law in the jurisdiction and defend the definition already in use. Perhaps this strategy is used simply because the party suspects the Supreme Court will find the current rule too narrow anyway, and they hope to win the case under a theory. But even with strategic motives, this litigant is engaging creatively with the law and participating in shaping it to better fit the interactions of coworkers and supervisors in the workplace.
Citizens Cannot Rely On State Actors Alone
As individuals engage with the legal system, litigation refines the state of the law and the justness of society through means that are corrective, clarifying, and effective.
First, litigation is a mechanism for correcting legal wrongs—both for individual cases and systemic injustices. Consider the American civil rights movement. While that struggle was largely social and political, there were many legal battles along the way. By addressing the case of one school system, the Supreme Court ultimately invalidated racial segregation for all public schools. Or suppose a logging company begins cutting trees in the forest that abuts your home. Passing through your lot is a quicker route to the highway, so the logging trucks begin using your driveway on a regular basis. The trucks are too large and mighty for you to stop with physical force. In this instance, the ability to sue for a court order to stop the company from using your driveway without your permission is an equalizer. The homeowner need not be overpowered by the semis barrelling out of the woods. It’s an extreme example, but it’s clear that the prospect of litigation protects the homeowner’s rights against a more economically and physically powerful entity. The homeowner’s standing to sue empowers the homeowner to either stop the logging company with assistance from the State or to negotiate with the company from a position of strength. In circumstances like these, where there is not a compelling state interest that allows the State to intervene, a private right to sue may be necessary to prevent injustice. Citizens cannot rely on state actors alone, whether prosecutors or law enforcement, to ensure that their communities are just; at times, only the advocacy of individuals for themselves or their neighbours can compel legal recognition of their rights.
Not only does the persuasive power of litigation right legal wrongs that are both discrete and systemic, but litigation also clarifies the law. When a legislative body enacts a new statute, there are inevitably circumstances that body has not considered that perhaps ought to be covered in that piece of legislation. As the late American legal philosopher Ronald Dworkin explains, it is when we don’t like the plain reading of a law in a particular application that we call its meaning “ambiguous.” A classic example involves a New York man who was poisoned by his grandson, heir of the old man’s estate. The state statute of the wills made no mention of the circumstance but the New York Court of Appeals ultimately denied the murderer his inheritance in contradiction of the statute because of the apparent injustice of the grandson benefitting from his crime. We don’t know the legislature’s reasons for not considering that circumstance in the statute, but the other surviving relatives clarified the law in that jurisdiction by challenging the interpretation that was assumed from the plain language. In cases like these, litigation is how citizens both ask the court to tell us what the statute means, and how we influence the judiciary.
Most common law systems even invite input from groups that are not actually parties in the dispute. These amicus curiae, or “friends of the court,” provide additional research and arguments relevant to the issue the court is deciding. Law enforcement groups may write to inform the court of how a new rule will impact their effectiveness, or the Chamber of Commerce may write with its opinions or research on the economic impact of a liability rule. Each of these groups, though they are not litigants and are not invited to appear in court, may help persuade the Court of the optimality of a particular rule by bringing out the broader implications of a decision in the instant case. Litigating a case, and in particular, appealing the case to a superior court with the ability to set precedents that must be followed by local courts, asks the Court to decide between multiple interpretations of the meaning of a law, not just to resolve the dispute in that case, but to provide guidance for the future actions of other citizens and agents of the State.
Of course, there are reasons to be wary of litigation that invites judges to interpret democratically created statutes. Judicial review is an intentionally undemocratic process, designed to ensure that the rights of minorities are not trampled by the votes of the majority. In many applications, this is a virtue (again, think of the American civil rights movement), but critics are justly concerned that judges are too apt to engage in “judicial activism” by imposing their own moral preferences on the meaning of the text they are to interpret, thereby invalidating laws written by elected representatives. Admittedly, it is nearly impossible to constrain the judgments of courts with life tenure—once installed, justices on the highest courts can decide cases by whatever means they choose— but this should not lead to the death of legal persuasion. The risk of the endeavour does not excuse those with stricter notions of legal interpretation to likewise abandon the practice of argument and avoid courts altogether. If we fear courts will interpret laws based on personal policy preferences rather than argument, then we should faithfully mount arguments for the justness of the expressed will of the people, defending our own principles of interpretation by demonstrating them.
Litigation also allows citizens to engage with the legal system by expressing values and preferences. The testimony and evidence admitted at trial become the raw data informing how judges and juries evaluate what is important to the parties in the case—and often, how the values of society at large may be shifting. In a particularly significant application, the United States Supreme Court decides cases implicating the Eight Amendment’s prohibition on “cruel and unusual punishment” by looking to society’s “evolving standards of decency.” In these cases, a majority of the Court finds indicia of social mores and opinions about capital punishment informative to the question of what is cruel and unusual. Litigating these questions gives voice to society’s answer.
But not only is the testimony and evidence offered at trial expressive of societal values, the institution of litigation itself speaks of societal values of dignity and respect. The freedom of citizens to decide when to seek legal redress for their grievances indicates society’s respect for the autonomy of individuals. The State does not require anyone who has been wronged to file a lawsuit. Instead, we value the agency of people who can decide whether to pursue a legal solution. What people do choose to pursue through the adversarial proceedings of a lawsuit indicates something about the importance of the issue—or perhaps the pettiness and greed of the parties involved. It also indicates belief that the system is fair and just, as litigants agree to be bound by the decisions of the court. In attempting to persuade another of the rightness of our claim, we acknowledge the dignity of an argument, the importance of reason, and the necessity of order.
The plaintiff who sees beyond his attorney’s confidence, or his own anger, takes a step of humility when he decides to take his case before a judge or jury. We may seek our own interests, but we want to do so with fairness and justice. Engaging in an open, adversarial legal system that invites persuasion based upon evidence and sworn testimony reveals that our self-interest does not require us to be unjust. Such advocacy may even prevent it.
As a final note, Christians in particular should appreciate that litigation acknowledges a truth few secular institutions recognize: that the world is deeply broken. At the very least, legal remedies honestly represent the inability of human beings to live at peace with one another, and unlike many other social institutions, litigation does not suggest that we simply need more education or open mindedness or some other social virtue of the day in order for things to be set right. While it would be foolish to think a system fuelled primarily by self-interest could enact true justice, people of faith can seek legal remedies with the knowledge that such action simultaneously bears witness to the existence of sin and brokenness, while imagining a just solution. That persuasion is itself an act of hope.