Legal Hog Calling

Written by BJ Sutton

Sometimes people here in France ask me about the litigation situation in North America. They've all read about, for example, the genius who won millions from MacDonald's after she spilled their coffee on her lap and it was HOT. Now she's the richest litigant on her block because MacDonald's neglected to explain that if she tried to drive and eat plastic muffins and apply Maybelline Superlash and drink hot coffee all at the same time, she might spill something on the tender inner thigh region.

My favourite litigation story is the guy who tried to commit suicide by throwing himself in front of a NY subway train. The train didn't kill him but did manage to cut off both his legs. He subsequently sued the NY Transit Authority, not for bad aim, but for NOT STOPPING him from jumping in front of the train. He won something like 8 million dollars, which will buy a lot of peg-legs and subway tokens.

Basically, I agree with the principle of North American civil law: that any wronged person can have his or her day in court trying to correct, or seek compensation for, that wrong. Pretty admirable sentiment. But the more deserving cases these days seem to get lost and delayed in a system overloaded with whiners and talk show hopefuls looking for an upgrade on their riding mowers.

The Napoleonic Code, which is the basis for law in France and Switzerland, does not allow such plebian plundering; as near as I can figure, the Napoleonic Code could be summed up as: You're guilty so don't come crying to us. The presumption of guilt over innocence makes people here give the legal system a lot of personal space. That's partly because the only foie gras you get in jail comes out of a CAN.

The real culprit in the litigious society is the contingency fee system. That's when a lawyer gets a third, sometimes even a half, of what is won in a lawsuit (plus costs and the plaintiff's firstborn male progeny). Most suits get filed on this basis. Lawyers know that insurance companies will urge their clients to settle rather than drag through a long court battle, so the odds are in favour of those who file (and, surprisingly, their attorneys). They recently tried to introduce this clever contingency arrangement in the UK, but it was nixed in favour of new Malibu-Barbie-style wigs for Queen's Counsel.

I like those people who sued tobacco companies because they got lung cancer from smoking. I mean, why stop there? Why not sue your elementary school for not teaching you how to read, since the warning has been written on the pack for at least 20 years...? Why not hunt down the kid who urged you to take your first puffs behind the bushes at the playground? Or all those people at work who used to put up with you cadging their Camels every 10 minutes? I mean, what does it take to get through to some people.

But the thing that really annoys me about litigation in the US is that it has resulted in a seemingly idiot-proof society and/or environment. Personal choice and freedom have moved to the back of the bus so that moronic behaviour (or personal choice and freedom) won't result in even more crippling lawsuits. On the rare occasions I find myself in the States, I quickly begin to feel suffocated by all the rules and forbidden zones and warning posters and labels and windows that won't open and safety features and chain link and verbal frontiers.... Of course this is nothing new; when Jean-Paul Sartre visited the US shortly after WWII, he wrote that he felt like he was being watched and corrected by a sort of omnipresent maiden aunt. It's a national tic, grown to hysterical proportions in recent years and exacerbated by litigation.

I feel much more comfortable in Europe, where you can smoke all you want and no one interferes or complains, where you can make jokes about Belgians and everyone understands, and where men and women can still flirt without a hissy fit going down in the Personnel Office. There's an unspoken assumption that you're responsible for your own shit and everyone else for theirs: this is the backbone of existentialism and the ticket to personal freedom. No one's going to file a suit if some wingnut decides to fall off a cliff, no one's going to tell you what to do with your body (unless they want to touch it), and if you spill hot coffee on your lap, well... everyone will just laugh at the stain on your trousers.