Trial Lawyer Sues Father of Three Children Killed in Crash; Why the Right to Criticize Lawyers is Vital

When you criticize lawyers or the legal system, thin-skinned lawyers get indignant. The head of the State Bar of California, Harvey Saferstein, called for a crackdown on jokes at lawyers’ expense: “Comparing jokes against attorneys to hate speech against African-Americans and women, Saferstein said he favors classifying such comments as hate crimes.” Saferstein, a leading liberal lawyer, said that “Crimes against attorneys should rate special penalties — similar to crimes against police, judges and political officeholders — because lawyers are representatives of the court and their work is essential to the country’s justice system.” (His comments came less than a year after the Supreme Court struck down a hate-speech ordinance as a violation of free speech in R.A.V. v. St. Paul.)

But lawyers often deserve criticism and ridicule. A classic example is a recent lawsuit filed by Kevin Grennan, a New York personal injury lawyer, against a father grieving over the loss of this three children:

Daniel Schuler, whose wife, Diane Schuler, killed herself and seven others in a wrong-way crash on the Taconic State Parkway is suing the state and his brother-in-law, whose three daughters were victims. Daniel Schuler filed a lawsuit Monday against the state in the New York Court of Claims, arguing that the highway was poorly designed and lacked proper signs. Toxicology reports determined that Diane Schuler was drunk and high when she crashed her minivan into an SUV occupied by three men, but her husband has contested such accounts. Daniel Schuler also filed a separate suit last week in state Supreme Court against Warren Hance, whose daughters Emma, 8, Alyson, 7, and Kate, 5, were killed.

The public reaction to this lawsuit was negative. One commenter wrote to the plaintiff (who is suing his brother in-in-law after the plaintiff’s wife killed all three of the brother-in-law’s kids) and his lawyer:

You are one slimy, pathetic excuse of a man that has absolutely no moral compass. . . . Your drunken, stoner wife took off with five babies in the car and killed eight people . . . To sue the state of NY and your brother-in-law who lost three beautiful girls in this tragedy is just downright disgusting and despicable . . . Oh, and the sleazy lawyer representing you should lose his license to practice law for even entertaining this frivolous lawsuit. I’m so angry about this I could spit.

Court rulings often seem bizarre to people who don’t profit from lawsuits. For example, trial lawyers obtained a ruling “in October 2006 that the terrorists who planted a truck bomb in the World Trade Center garage in 1993 were only 32 percent responsible, while the Port Authority of New York and New Jersey was 68 percent responsible — and therefore, under New York law, wholly on the hook for $1.8 billion in damages.” Walter Olson described the idiocy of this decision here. The ruling was unanimously upheld by a liberal state appeals court, which chose to ignore “the centuries-old concept of intervening causation” in order to uphold the unjust ruling.

Those who seek to quell criticism of lawyers cite the fact that lawyers are needed to preserve a free society. Even if this were true, it would be no justification for censorship. As Justice Brandeis once noted,  repressive censorship “breeds hate” and “that hate menaces stable government,” rather than promoting safety; “the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies.” Moreover, lawyers’ overly-large influence often has had a negative result on the legal system, replacing the pursuit of justice with the pursuit of lucrative litigation for its own sake. For example, the states with the worst divorce laws (designed to create business for lawyers) are those that historically had the most lawyer-legislators.

Moreover, the American Bar Association has sometimes assaulted the Constitution and advocated restrictions on constitutional rights. It has advocated curbs on constitutional rights that were rejected by the Supreme Court, in free speech cases like Keller v. State Bar of California and Boy Scouts of America v. Dale, and other Bill of Rights cases like District of Columbia v. Heller, all cases in which the ABA urged the Supreme Court to narrow the reach of Constitutional safeguards. The ABA labels criticism of the courts as being an assault on an independent judiciary (except when the criticism is aimed at conservative judges, in which case the ABA joins in the criticism, and ABA officials peddle myths about what the Supreme Court supposedly held in cases like Ledbetter and Citizens United), even though constructive criticism of the judicial system is valuable in improving it, as former Michigan Supreme Court Chief Justice Clifford Taylor and other judges have noted.