Picking the Deep Pocket: The Lunacy of Misplaced Responsibility

A long time ago people were allowed to protect their property. Homeowners could even place traps in their homes to kill trespassers. And then there was a big change in the law and it was no longer acceptable to use deadly force to stop a burglar. Now we have experienced another big shift in the law: if you are committing a crime and breaking into a house and injure your hand while breaking the plate glass, then you get to sue the person who owns the property. The message is that “[t]hieves are people too, and they are entitled to a safe working environment like everybody else.”

Ninth Circuit Judge, Alex Kozinski, addressed the Southwestern community at an event sponsored by the Federalist Society, on Tuesday, December 9, 1997. Judge Kozinski repeatedly used the term “lunacy” to describe the process of misplaced responsibility. It is lunacy that our legal system has come to “subsidize behavior that is irresponsible or self-destructive, and it is precisely this kind of behavior that any rational legal system should try to suppress.” When a person assumes the risk and does something criminal or attempts suicide in front of a moving train and gets their legs cut off, it is really that individual’s fault. Likewise, a verdict for nine million dollars for losing an arm to a subway train after stumbling off the platform while drunk really is that individual’s conduct alone that led to his misfortune.

When the courts give awards to these people, it creates an overall perception that “someone else is always to blame for whatever misfortune happens to befall us.” The courts foster this impression and “when we allow our courts to be crowded with individuals who seek to escape the consequences of their own folly, we foster the notion that somebody out there is to blame for whatever goes wrong in our lives, and that it is somebody else’s duty to look out for our own welfare.” These judicial determinations “send a message that taking care of your safety is not your responsibility, but that of someone else.” For instance, take the lady who got a cup of coffee at McDonald’s and then negligently spilled the coffee and burned herself, which, of course, you will do if you spill hot coffee on yourself. As a result, McDonalds and all the other places now only serve warm coffee. “These lawsuits have a distorting effect on our aggregate perception of the world and ultimately on the degree of responsibility that each of us is willing to take for the conduct of our lives. When we give credence to such lawsuits, and particularly those that allow recovery, we undermine the important notion that there is a cause and effect relationship between our willful acts and our destiny.”

The “law is not just a mechanism for resolving disputes. It is a weather vane of social morays.” And lawyers have a profound, strong role in society. They are also counselors, not just litigators. It is the lawyer who counsels and ultimately decides whether a particular case is acceptable. The lawyer has a moral duty to explain to the client that even though the case might be filed, the responsibility really lies with the client and thus the case should not be brought. As a notion of fairness and justice, Judge Kozinski introduced the “Toyota principle: you ask for it, you got it.” In other words, you are stuck with the consequences and no one else is going to help you pay for a problem that arose because of your own act. He further announced that “we need a renewed sense of responsibility to solve the monumental problems we face as we approach the third millennium. The time has come for the courts to say if you got hurt because of your own irresponsible or destructive actions, then you are going to be stuck with the consequences and we are not going to help you go looking for someone else to help you pay the price for your folly; you ask for it, you got it.” There is “a sinister external force that robs us of our free will and delivers us from responsibility for our deeds. Who is this diabolical, faceless menace?” Generally, it is someone with deep pockets. But there are plenty of us out that do not need to be led in that direction. We need to be led in the other direction, of taking more responsibility for our actions. It is the one picking the deep pocket, causing everyone to drink warm coffee, who is the true menace in society.

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