ANTITHESIS: What have been some of the responses to your book since its release?
HUBER: Well, the author is probably the last person to give you an objective answer to that, but I'll try... I'd say clearly the people who are very much opposed to the liability system as it now stands have agreed with me entirely and enjoyed it immensely. Equally clearly, the people at the other pole who like the liability system a lot have despised the book and have worked fairly hard to discredit the book. And I think the middle ground has been entertained and provoked a little bit by the book and have found some things to agree with and others to disagree with.
ANTITHESIS: It seem like there's also a moral perspective, a moral dimension involved here. What is your response to those plaintiffs' attorneys that recognize the problem, that recognize that the system is a money machine --it is a great way to fleece rather innocent defendants -- yet nevertheless go about making their living at this?
HUBER: The problem is overwhelmingly that the plaintiff P[ersonal] I[njury] attorneys have utterly persuaded themselves that they doing good by doing well. They sincerely believe in a wicked, unaccountable, callous corporate America. They don't like doctors. They don't like companies, large companies. They despise insurance companies. There is a very strong populist streak to them, a kind of "Let's get em somehow", and they sincerely believe they're on the side of the angels. I don't think they are.
What should one say to them? I think the most one can say to people in that position is this: When you truly and passionately believe you're on the side of the angels (and I suppose this extends to authors who make money writing books on the other side of the issue as well!) you should always stop and ask, "How objective am I? How objective can I be, when my livelihood depends so critically on this?" One needs to have a little bit of humility in this, and the simple fact is one does not become a successful PI lawyer by being humble.
I don't suppose one becomes a successful author by being humble either, so it cuts both ways. (laughter)
I think there's an incredible lack of introspection on their part. One wants to state this clearly without being so blunt, but the fact is they do tremendously well at this business. They make lots and lots of money. The richest of them make truly phenomenal amounts of money -- in the millions and tens of millions of dollars a year. While I have nothing against making money -- I think it can be a very commendable act and I'm in favor of it --you do have to sit back and ask, "Am I making this money in a way that's good for other people in my society or perhaps not for good?" As I conclude in my book, I sincerely believe that despite the best intentions and the constant repetition within the profession that they're doing a great thing in going after wicked people. I think at this point, with the system stretched to the limits that it's now at, they're doing more harm than good.
ANTITHESIS: Well, at the beginning of your book you discussed how the law of contract arose in the common law, in response to England's transition from a feudalistic to a mercantile society. Do you think the system we inherited from the 50's, 60's and 70's was likewise a response to the welfare state...
HUBER: Oh, very much so!
ANTITHESIS: ...the idea being to externalize the costs of the welfare state onto the private sector?
HUBER: Very much so. I think you have to be blunter. There were very strong collectivist "spread-the-wealth" instincts behind a lot of this. There was the notion that we've all got to hang together here, that a lot of individuals lack something or other -- the will or education or information needed to make wise choices for themselves -- and when people make foolish choices we can't just leave them lying bleeding in the streets. ... One has to put oneself back into the mindset of those days. All the other areas of the law were moving forward; it was a time of high optimism and social programs. And the tort lawyers got caught up in the excitement of it all and decided they were going to reform their little neck of -- what once had been a little neck of -- the woods. It was part of a move toward collectivizing a lot of rights and diffusing a lot of responsibilities, raising money more broadly and distributing it in ways thought wiser, more generous and more compassionate.
ANTITHESIS: Do you see any signs that make you hopeful? For example, the Nally v. Grace Community Church decision, where the California Supreme Court refused to create a new tort of "clergy malpractice".
HUBER: Oh, sure, there are some hopeful signs. In California -- especially since the California Supreme Court has changed substantially and it's a much more conservative court. There have been similar changes in Texas which are encouraging. Quite a few state legislatures are beginning to try and close down on this a little bit.
There are also some discouraging signs. There's a counter-revolution in progress that's trying to bring all of this back to the insurance companies and say, "Look. There's nothing wrong with the legal system. All we've got to do is put price controls on the insurance industry." ... I think some would very much like to see the state take over much of the insurance industry and run one giant kind of state pool of insurance. ... [A lot of people would like to eliminate risk factor categories entirely and] ... homogenize the insurance industry to the point where it becomes a state operation like Medicare. So those are some rather discouraging signs that move away from the market, away from treating individuals as individuals, toward a more collectivist notion.
ANTITHESIS: So then we haven't reached the end of this revolution by any means?
HUBER: Oh, no! It would be a very grave mistake to assume that the tort lawyers are running out of steam and will die a natural death if we just let them. (laughter) ... If one wants the system to stop, people are going to have to work at it affirmatively. It is very much a very self-perpetuating, self-fueling system because it's avaricious. Despite all its excesses we still have a huge economy out there that is potentially a target.
ANTITHESIS: Then if change is possible, if the plaintiff attorneys can be contained, from what sector of society do you see change coming from? The legislature?
HUBER: Well, profound change -- and we are talking about profound change -- ultimately has to come at every level. But I think if one has to name a first line, it will have to be in the state courts. They were the ones who brought us down this road primarily and it is the state judges who have the principal power to put a check on this.
I'd say the next most potent line of defense is the state legislature. Statutory restraint. They can, for instance, change things like joint and severable liability .... just in a stroke they can say it's no longer there and henceforth we will have responsibility proportional to actual fault; no more, no less. Also, and this is much more controversial, they can say, "Look. We recognize pain and suffering as real. But we also recognize that it's arbitrary. So we're going to put some limits on where these damages can go. Not because these limits are inherently just. But because a system without any order or limits is unquestionably unjust." They can change things like the rules of evidence to keep some of the "junk science" out of court.
And a very poor third line of defense, and I'd say they run about even, is either the U.S. Supreme Court or the U.S. Congress. Probably the U.S. Supreme Court can do a few tiny things like due process and punitive damages or rules of evidence in the federal courts. Congress can pass bills. It's had very little success in doing that, but theoretically stands there as well.