Comments and Commentaries from Bob Dorigo Jones

Every once in a while, usually during radio interviews, I must address the issue of whether the effort to end lawsuit abuse in America is really an anti-lawyer effort.  Sometimes the host will add to that question by quoting a famous line written by Shakespeare: “The first thing we do, let’s kill all the lawyers.” I don’t believe I have ever addressed this topic here, so I’d like to do so as briefly as possible.

My answer to that question is always short and to the point: Absolutely not. I have no interest in seeing lawyers go away and, in fact, have a lot of good friends who are lawyers.  We need lawyers.

Any lawyer worth his or her salt can tell you that Shakespearean quote is usually taken out of context.  The character in the play making that comment is plotting a rebellion and thinks it would be easier without any lawyers around to muck up his plans.  Therefore, taken in context, that line is really about the importance of having lawyers around to maintain a civil society.

There’s a great analysis of that quote and what it really means on this website, but just to keep things from getting too serious here, I’d like to share my favorite part of that analysis. It’s the last line, and it goes:

“As long as there are lawyers, there will be ‘lawyer jokes.’ And lawyers will show how those jokes ring true by trying to explain how such lampooning really constitutes praise for their profession, thus by example justifying the jokes more than ever.”

Sorry, I just couldn’t resist.

When I make my case for the idea that America would be much better off if we didn’t sue each other so often, I often use a quote from the man many regard as one of the most honest lawyers this country has ever produced: Abraham Lincoln.

In remarks he prepared for his fellow lawyers, this is what Lincoln had to say on the topic of suing someone:

“Discourage litigation.  Persuade your neighbors to compromise whenever you can.  Point out to them how the nominal winner is often a real loser – in fees, expenses and waste of time.”

What wonderful advice!  Certainly, as Lincoln proves, one does not need to be anti-lawyer to believe that there are often better ways of resolving conflicts than by hauling someone into court.  Lincoln was a respected litigator, so his advice on avoiding lawsuits means a lot.  More Americans need to be aware of this, and I thought it would be good to bring it up now as we mark the two hundred and fifth anniversary of Lincoln’s birth.

In closing, I would like to mention who originally brought that Lincoln quote to my attention.  It was another highly respected lawyer, former United States Attorney General Richard Thornburgh. He believes America has a lawsuit problem, too, and many years ago, he helped me kick off a grassroots effort to eliminate lawsuit abuse. He said he thought I might be able to use that quote someday, and boy, was he right!

So there you have it.  Two of America’s greatest lawyers saying we need fewer lawsuits in America. I rest my case.

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Another football season has come to a close and, whether we like it or not, the focus of the sport will now shift from touchdowns and goal-line stands to what can be done to prevent more concussions and, ultimately, preserve the game in America.  And, in my opinion, that’s where the focus should be now.

Violence in football is a serious issue, and changes are needed in the game for the good of the players. Much has been written about the need to reduce injuries, especially head injuries, but it’s worth noting that excessive violence is not a new issue in football. As the NFL and other leagues wrestle with this issue, it would do them well to look back at how football dealt with this problem at the turn of the twentieth century.

It may come as a surprise to many, but more than a hundred years ago, football was nearly banned because of carnage on the gridiron.  I learned about this after reading an excellent article on the subject in the monthly magazine, Imprimis, published by Hillsdale College.  In “Football and the American Character,” John Miller reveals that in 1905, eighteen people died playing football.  As he put it, the deaths…

“were not freak accidents as much as the inevitable toll of a violent game. And they horrified a group of activists who crusaded against football itself—wanting not merely to remove violence from the sport, but to ban the sport altogether. At the dawn of the Progressive era, the social and political movement to prohibit football became a major cause.

Calls for the game to be outlawed came from major newspapers like the New York Evening Post as well as leaders in higher education, including the president of Harvard.  At the time, college football was the primary game in town when it came to the sport, and Harvard was one of the powerhouses.

However, the president of the United States at that time, Theodore Roosevelt, wanted to save football. Roosevelt was such a big fan of the game that he had gone out of his way to recruit football players when he put together the Rough Riders in 1898.  He believed football helped build character and was intent on saving it for future generations.

So, at the end of the grisly 1905 season, he brought together a group of reform-minded leaders in the sport to push for new safety rules, and they did just that.  According to Miller,

“football experienced an extreme makeover: The yardage necessary for a first down increased from five to ten. Rules-makers also created a neutral zone at the line of scrimmage, limited the number of players who could line up in the backfield, made the personal foul a heavily penalized infraction, and banned the tossing of ballcarriers. These were important revisions, and each was approved with an eye toward improving the safety of players.

Their efforts greatly reduced injuries and even led to the creation of an organization that we know today as the NCAA.

I find this story fascinating, not just because I experienced more than my fair share of concussions while playing football in high school, but because of the fact that this entire controversy took place out of a courtroom.  There were no lawsuits. There were just highly motivated and creative leaders who came together to solve a major problem without being forced to by a judge.

Now, I know that lawsuits are a fact of life in America today and are sometimes needed to bring about change.  However, I don’t think it is naïve to believe that the leaders in the game can take a page out of Teddy Roosevelt’s playbook and implement changes where changes are needed. Americans pride ourselves on being a self-governing people, and the current situation in football is a prime opportunity to show the world that we still have the ability to, pardon the pun, tackle this major issue before we are forced to by a judge.

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Can you get cancer from handling an indoor extension cord, a fishing lure, or a wooden match? If you read the label on those and hundreds of other products that carry what is known as the “Prop 65 warning,” you might have a serious concern about that. However, a researcher in California has some good news for consumers who may wonder about their safety.

First, a short explanation of Prop 65 is in order.  In 1986, California voters approved Proposition 65 to require their state government to publish a list of chemicals known to cause cancer or reproductive harm.  Furthermore, the law requires product makers and business owners to put a warning on their product if it contains one of those chemicals – even if it is present in a quantity so small that it poses absolutely no risk to anyone who uses the product.

The ostensible purpose of the law was to protect Californians from cancer.  At the time, a majority of voters thought, “Who can argue with that?” Unfortunately, they forgot about the law of unintended consequences. The law was written so broadly that when interpreted literally, it creates the need for worthless warnings on scores of products that present no danger to consumers. For instance, it’s the reason there is a label on a four-inch fishing lure with a three-pronged hook dangling from one end that warns, “Harmful if swallowed.” Presumably, Charlie Tuna can’t sue if he’s caught now.

Today, an untold number of products sold across America carry the Prop 65 warning. Manufacturers are required to put them on products sold in California only, but it’s easier for product makers to put them on their product regardless of where it’s sold, so you see them whether you live in Pasadena or Palookaville. They all say the same thing: “This product contains a chemical known to the State of California to cause cancer.”

Many of the warnings that have won our annual Wacky Warning Labels™ Contest over the years have been placed there by product makers who are afraid of running afoul of Prop 65.  In 2013, Jeff Dudka found a common indoor extension cord in a store in Michigan that warned “Wash hands after using” along with the Prop 65 warning. Do you wash your hands after unplugging an extension cord? No? Well, don’t worry about it.

Michael Marlow, a professor at California Polytechnic Sate University in San Luis Obispo, recently published an op-ed in the Wall Street Journal in which he raised and then answered the $65,000 question: do these warnings actually accomplish anything?

Here is how Marlow put it:

“Since Californians have been warned of possible carcinogens for more than 25 years, you’d expect to see a decline in cancer rates compared with other locations that did not adopt similar ‘right-to-know’ laws.

However, I recently examined cancer rates and discovered no evidence that Proposition 65 has lowered cancer incidence among Californians. There isn’t a single empirical study that demonstrates any public-health benefits.”

Read his full op-ed in the Wall Street Journal here (subscription required) and his study here.

So, then, are these warnings worthless? Well, not to the scores of personal injury lawyers who have made a living suing product makers who fail (often unknowingly) to include a Prop 65 warning on a product that includes one of those chemicals on the State of California’s notorious list. And that’s the problem.

Even if a product maker or retailer sells a product that poses no threat to their customers, they can be sued by a private lawyer acting on behalf of the State.  To read one real-life story about this, see our previous post about Chuck Firth, the inventor of a great little cat litter scooper.

Prop 65 has been abused so many times by personal injury lawyers to harass small businesses, not only in California, but across the country, that pressure is building on California lawmakers to address this problem. It’s time for this nonsense to end, because, as Marlow puts it, “the only winners from Proposition 65 are the attorneys who bring lawsuits.”

Photo Credit: OCSmallBusiness.com.

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