07/10/2013 09:50 am ET Updated Sep 09, 2013

TWO keys for the Court Houses of America ONE IN---THE OTHER OUT

One cornerstone of American Democracy has been a FREE key to the courthouse--wherever for whatever. That sounds good, and may have been, until a proliferation of "strike suitors" and pseudo blackmailers entered the picture aided by hungry and/or greedy lawyers looking for customers or contingent paydays. (In full disclosure I have been a lawyer since 1956. I am deeply disappointed in my profession's lack of judgment and ethics.)

In our market based democracy, we created a judicial system in large part to help maintain discipline in the marketplace. Hence the notion in our legal system that simple, inexpensive and easy access to a court to seek to right a wrong was the best way to incentivize and encourage everybody NOT to do wrong.

Well guess what? That worked pretty well until the legal profession got so well paid that many lawyers needed more work to pay their expensive staff and/or they took on cases with a contingent interest in the outcome. The result of that was a diminution of their application of judgment about what seemed to them to be a meritorious claim. And, the result of that, of course, were more people who, as defendants, had to hire expensive lawyers to defend themselves against meritless attacks.

What may have started out as a level playing field became seriously tilted in favor of plaintiffs and their lawyers who very frequently "extort" settlement payments from truly blameless defendants, who rationally pay something less than the cost of their defense, particularly if they could not get the case dismissed out of hand, which is not so easy to do, if the plaintiff's lawyer was clever enough to throw a lot of their client's lies and misstatements into the complaint.

Here is a recent example of exactly this problem. An older couple of unquestionable repute { now in their 90s and frail and defenseless in many ways}, sold their summer cottage two years ago to a somewhat younger couple -a female doctor and a male lawyer. The transaction was conventional despite two brokers in the same firm acting for their clients; both parties had fully competent lawyers; and the buyer had a distinguished inspector.

The usual seller's disclosures were made and included a specific reference to a portion of the building which was prone to leaking in a heavy storm and suggested that the buyers put up a tarp over that site in the winter to reduce the problem when they were away in the winter.

The inspection report noted several other possible issues which the buyer apparently chose to overlook at the time. (The buyer, it should be noted, was sufficiently confident in the inspector's work to hire him post closing with respect to some of the issues raised by the inspection).

One year later, after adding a new bedroom and bathroom to the first floor of the cottage, the buyers hired a new lawyer to give notice of a raft of issues they had allegedly found which were allegedly not revealed in the disclosures and inspection. And, at the same time they inquired if any of the parties had insurance against such claims. (Is that a tip off of their wrong intentions, or what? It is a well known matter of law that having insurance, or not, is NOT relevant to any of the alleged issues that might be at stake in any legal matter.)

Finally, the contract governing the transaction said plainly and clearly that if a buyer had a lawyer and inspector picked and paid by him, after the closing ALL responsibility for the property becomes his alone, UNLESS there was clear and convincing evidence of a conspiracy among all the parties on the sell side to defraud the buyer. No such allegation was explicitly presented in the complaint.

The sellers are old friends of mine and reached out for advice in finding a lawyer, which is how I learned the story. They are now well represented. They simply want the aggravation and grief to go away to the point that they may very well pay something to make that happen. That seems very wrong and illustrates and illuminates the systemic problem in our legal system.

I feel that they should pay nothing AND that their lawyer should be able to get the case dismissed AND pursue a claim for "abuse of process" to get his costs plus compensation for his clients for unjust pain and stress. This is where the second key -- to get out of the courthouse -- becomes so fundamentally vital to our modern court system.

The standard to bring a lawsuit is very low, little more than some paperwork and a filing fee for a simple complaint. Sadly, a lot of lawyers file dozens -even 100s--of cases expecting to 'win' a few. But, each one of those requires the defendants to hire lawyers and bear expense before getting any chance to end the case without paying uncalled for 'tribute'.

There are two ways to solve this problem. One would be to adopt the British method in which the loser as well as his the lawyer pay BOTH sides' expenses, which of course puts pressure on both sides and their lawyers to be very careful, confidant and to be very sure of their stories and facts.

The other way would be to have virtually the same standard of proof to establish "abuse of process" as to get into court. Today getting a court to levy an abuse of process penalty on a plaintiff, and or his lawyer, is rare and very difficult. That question should be reviewed by Bar Associations and Legislatures everywhere.

While we should perhaps not make getting into court more difficult, we should make it much easier to call a plaintiff's and his lawyer's bluff by putting them at risk as well.

Either or both of these solutions, which would be quite simple to implement [despite vehement opposition from lawyers, who are already among America's least liked citizens along with Congress] and almost surely would go a long ways to balancing the playing field for litigating parties.