A Litigious American

New Jersey Law Journal, March 20, 1995

The Economist recently reported on a law suit being tried in London, involving that most American of corporations, McDonald's. (Remember the scalding hot cup of coffee?) In England, in this case, however, McDonald's is the plaintiff in a libel case against two judgmentproof individuals associated with an obscure environmental group. They published a pamphlet which accused McDonald's of actions involving outrageous conduct. There were 26 preliminary hearings before a trial started in June, 1994, before a judge without a jury. Predictions are that it will be 1996 before it is completed and judgment entered. The following comment appears in the magazine article:

Is it worth it? Even if McDonald's can prove that it has been unfairly traduced, the company's shareholders might ask whether it was sensible to sue two environmentalists with no money and no clout. Quite apart from the amount of managers' time swallowed up over more than a decade, the net effect of the trial has been to publicize charges which the vast majority of McDonald's customers in 70 countries across the world would have dismissed as the ravings of green extremists. The public interest is no less debatable. In addition to the cost to the taxpayer, the case will occupy a senior High Court judge for as much as 18 months at a time when delays in civil cases coming to trial are causing concern.

The bizarre case of McLibel is a reminder that the current law is less a safeguard of individual reputation than a casino for the rich and powerful.

Given the requirements of our libel laws, this type of legal action probably would not be brought in our courts. However, this case illustrates what happens when money determines one's ability to use the court system. The wealthy can write off business expenses, the poor have nothing to lose. But members of the middle class, who may have to pay a winner's legal expenses if a case is lost, have to place their limited resources in jeopardy every time they invoke the courts.

Tort reform advocates usually cite Great Britain's legal experience when they seek to make the right to litigate more dependent on the size of one's pocket. As this case illustrates, things look better when viewed dimly across an ocean. These reformers make accident victims and their attorneys the scapegoats for the "litigation explosion," ignoring completely that it is the business community that has been responsible for a large share of that explosion. Who's kidding whom?

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