Lawsuits and Organizing
...by Eric Kirk
As an attorney, I receive about a telephone call per week from someone with a serious complaint against a public entity. The problems range from mistreatment by police to arbitrary grades imposed on high school students. Some I can help, others I have to refer, and others simply have no practical remedy through the courts.
People are shocked when I tell them when their problems have no practical remedy through the courts, but this is very often the case. With all the hype about sue-happy plaintiffs victimizing business and government, the sad truth is that it is extremely difficult to effectively resolve many situations through the court system. With regulation virtually non-existent and "law-and-order" inspired laws giving free reign to enforcement agencies, lawsuits represent one of the few remaining checks on the abuse of power in this country. For this reason, it has been heavily targeted.
The anti-lawsuit hype has created a backlash against plaintiffs -- reflected in an increase in defense verdicts over the past decade -- and has at the same time created an unreasonable expectation. The largely misunderstood McDonald's coffee case verdict (which was severely limited by the courts) has a large number of people believing that they simply need a good lawyer to turn their gripes into gold.
The inability of progressive forces to organize, let alone expand, their base has led to an ill-advised switch in emphasis of tactics. Unions sue rather than strike. Environmental organizations sue rather than mobilize. While there have been some successes, there have also been serious failures, such as the Christic Institute's premature lawsuit against Iran/Contra figures which resulted in the virtual destruction of the Christic Institute and did nothing to deter further Constitutional violations.
Contrary to popular belief, the propaganda/educational value of lawsuits is almost non-existent, and certainly if this is the only purpose for involving the courts, the value is far outweighed by the energy and resources expended.
The moral: Lawsuits are no substitute for organizing. Throughout this country's history, real progressive changes in system and law have mostly come about as the result of pressure from popular organizations.
Not only that, but lawsuits are strictly limited by the laws that are passed. And laws that are passed in a context absent strong public pressure rarely fail to benefit prevailing power. Over the past couple of decades, numerous laws have been passed, based upon the myth of the "litigation explosion," that severely limit the possibility of effective redress of many grievances. The check on police power in particular has been extremely weakened, because the rise in violent crime has all but silenced the calls for reason and compassion in law enforcement. The results have been bad news for civil plaintiffs and criminal defendants.
There is virtually no such thing as an illegal car search anymore. Defenses to criminal charges have been limited. Rules of discovery completely favor the criminal prosecution. The continuing war on the poor has resulted in the Fraud Early Detection System, which all but eliminates the Fourth Amendment for those poor enough to require welfare assistance.
While Proposition 215 passed by a large margin, Proposition 213 also passed, which basically eliminates the recovery of any damages resulting from car crashes other than out-of-pocket costs for people too poor to afford automobile liability insurance, even when there is absolutely no contributory negligence. At least one of the cases in my office involves such a person who actually voted for the proposition. She would not have, had someone explained the proposition to her.
When considering a lawsuit against a public entity, you must remember that the basic principle is that "you may not sue the King without his permission." The rules governing such suits are very limiting. Every suit requires a theory of damages, which are often hard to measure. A public entity may not be held liable for punitive damages. This means that public entities, under civil tort law, may act with complete disregard for your rights and not face serious financial consequences. Unless you can convince a jury that the breach of your constitutional rights is worth a great deal of money, you could shell out ten to twenty thousand dollars for a five thousand dollar verdict. Unfortunately, to most people, First Amendment or Fourth Amendment rights are an abstraction until they have lost them. It is a rare juror who will impose a large verdict in such cases.
This is not to discourage lawsuits against public entities or private organizations that violate fundamental rights. Important advances can be and have been made. The jury remains one of the last controls on the system by ordinary people. But more effort must be made to pass laws that provide more favorable conditions for successful lawsuits and criminal defenses.
While it's true that a great deal of valuable Constitutional rulings have been overturned or ignored, the words and thoughts of all great activists from Joe Hill to Judi Bari should be remembered. "Don't mourn. Organize."
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