Over the past couple of decades, there has been a full frontal corporate attack on litigation in the United States.

The attack has been led by the U.S. Chamber of Commerce, the American Tort Reform Association, the Cato Institute’s Walter Olson with his best selling book The Litigation Explosion and Covington & Burling partner Philip Howard with his best selling book The Death of Common Sense: How Law is Suffocating America.

On the other side? A decapitated trial lawyer bar and an anemic consumer and public interest movement.

Now comes University of Connecticut Law Professor Alexandra Lahav with a mild corrective – In Praise of Litigation (Oxford University Press).

Lahav makes the point that lawsuits change behavior, provide information to consumers and citizens, promote deliberation, and express society’s views on equality and its most treasured values.

In Praise of Litigation shows how the court system protects our liberties and enables civil society to flourish, and serves as a powerful reminder of why we need to protect people’s ability to use it.

Lawsuits are a way to settle disputes. The concerted corporate attack on litigation has succeeded in limiting lawsuits.

But Lahav sees troubling signs on the horizon.

“I read a wonderful study about China where they don’t have a medical malpractice system,” Lahav told Corporate Crime Reporter in an interview last week. “And there have been many incidents of violence against doctors in China. People feel they have been harmed and they had no recourse. That is not the kind of legal system that we want. We don’t want people to be afraid to enter into contracts because they are unenforceable. We want people to feel that there is a backstop when things go wrong. That’s what the courts are. They are not intended and people do not use them for every single thing that comes up. But when we need them, we need them to be there. And the risk we are seeing with this new legislation is that we are going to eliminate this backstop. And we are going to start seeing people turning to other means of resolving their disputes. And that’s not good for business or for individuals.”

In addition to being a way to settle lawsuits, Lahav sees litigation as a foundation for democracy.

“In order to have a civil society, you have to have trust in one another that we can engage in economic exchange, or walk down the street, or whatever it is, and that people aren’t going to attack us, that we aren’t going to have bad business deals,” Lahav says. “And we have trust because we know that the law will be enforced. Litigation is the way we enforce the law.”

“Also, in order to have a thriving democracy, you need information. Let’s say a government official does something we think is wrong. And there is a cause of action for citizens to sue. We should have the opportunity to do that. We are seeing a lot of lawsuits against the government now. We saw them under Obama and under Bush.”

“To have a day in court against our government before a judge — those are moments when our democracy is actually working, working well. That’s why litigation is good for democracy. Knowing that we have recourse allows us to enter into trust relationships with one another. And knowing that we can hold accountable the government or somebody richer or more powerful than us when they do wrong builds trust. That’s why it promotes democratic values.”

Lahav points out in her book that while the tort reform movement has had some real successes in limiting what can reach the courts, there have been victims too.

Lahav says that while it has become increasingly difficult for ordinary people to enforce their rights, in the grand scale of lawsuits, actually crazy or bogus lawsuits constitute a tiny minority.

Lahav says that in fact, most anecdotes turn out to be misrepresentations of what actually happened and that critics are blinded to the many benefits of lawsuits.

The majority of lawsuits promote equality before the law, transparency, and accountability.

“Our ability to go to court is a sign of our strength as a society and enables us to both participate in and reinforce the rule of law,” Lahav said. “Joining lawsuits gives citizens direct access to judges who can hear their arguments about issues central to our democracy, including the proper extent of police power and the ability of all people to vote. It is at least arguable that lawsuits have helped spur major social changes in arenas like race relations and marriage rights, as well as made products safer and forced wrongdoers to answer for their conduct.”

How is it that the corporate forces won the public relations battle on this issue?

“Tort had a lot to do with it. They were able to tell a few stories about lawsuits that looked ridiculous and used that to convince people that the run of lawsuits are bad.”

“When you tell a student — how would you feel if this happened to you and you couldn’t sue? They would be very upset. But they always think that there must be something wrong with the other person who is suing.”

“The McDonald’s hot coffee story was the most successful story. It was in the national news. It made a big impression on people. It impressed on people that people sue for dumb things. But the reality is that it is very difficult to be a plaintiff in a lawsuit. It’s also difficult to be a defendant.”

“But that said, to be a plaintiff in a tort suit — they can look at all of your medical records, you have to be deposed. If there are psychological records, they are going to look at that. For somebody to expose themselves in that way — usually they have to be seriously wronged. All of the quantitative studies — not just anecdotes — show that people who bring lawsuits are people who were significantly wronged. And most people choose not to pursue litigation at all.”

“The percentage of people in the tort space who are injured compared to those who decide to file — there is a significant gap. Most Americans when they have a problem, they kind of lump it. Same with small business. When they have a contract dispute, they try and work it out. They don’t litigate. It’s very costly. But we need to have this backstop for when we can’t agree.”

“The alternative is people feeling voiceless and turning to other methods of resolving disputes — including violence. You see that in countries where people don’t have a strong court system.”

[For the complete q/a transcript Interview with Alexandra Lahav, see 31 Corporate Crime Reporter 10 (12), February 27, 2017, print edition only.]