Civil Justice Reform The Office Of Attorney General Must Not Be An Adjunct To The Plaintiff's Bar

Tuesday, February 1, 2005 - 00:00

The Editor interviews Phill Kline, Attorney General of the State of Kansas.

Editor: Please tell our readers how you view the Office of Attorney General.

Kline: The Office of Attorney General has significant authority and responsibility. The Attorney General is the state's chief law enforcement officer and also enforces the state's consumer protection laws.

These responsibilities are significant, and I engage them vigorously. It is also important, however, to recognize that a large majority of our state's enterprises provide a needed service or product to a willing consumer and that free enterprise works miracles.

Editor: How do the business enterprises in Kansas benefit the public?

Kline: Just think of the advanced technology in the American market and the numerous products designed to improve our lifestyle or health. New products and new advancements occur every day. I look at America and its free market and I see miracles: a standard of living, freedom and opportunity that is unprecedented in human history.

Editor: What do you mean by an Attorney General being an adjunct to the plaintiff's bar?

Kline: Some litigants look at our markets and see an opportunity for creative wealth redistribution through engaging in the public flogging of legitimate enterprises while pursuing dubious litigation. The goal is not necessarily to prevail in the lawsuit but to extract settlement. This is achieved by teaming with an Attorney General's office, litigating by news release, sustaining the suit long enough to initiate poor public relations results for the company with a resulting depression in stock prices. This forces the company into a settlement posture to pay to make the problem go away. You've seen it happen, and the result is increasing uncertainty in the free market.

Starting and sustaining a business is a risky venture. It requires a devotion of talent, time, sweat equity, creativity and capital. Most fail. Those who succeed generally provide something that is desired. America is the business capital of the world because we have been a nation that is ruled by the rule of law.

Editor: What do you view as the fundamental principles of the rule of law?

Kline: Our law was premised on principles of self-responsibility and opportunity. The law was present to correct wrongs and therefore, before recovery in a lawsuit was possible, there had to be a demonstration that the defendant did something wrong that caused a harm to the plaintiff that was measureable in economic damages.

These three pillars of jurisprudence - culpability, causation and measureable damages - promoted self-responsibility and encouraged opportunity development by preventing the arbitrary redistribution of hard-earned wealth. It also served our nation in preventing the elevation of wants to rights. When such elevation occurs, forced wealth redistribution always follows through utilizing the coercive power of the court or legislature.

Editor: What is the status of these principles?

Kline: Today, those three pillars are gone in our courtrooms. It is no longer necessary to demonstrate culpability as strict liability is increasingly the standard. Furthermore, activist judges team with headline grabbing Attorneys General to keep questionable litigation alive in order to allow legislation through the judiciary through forced mediation or settlement. The causation of damages went out the window a long time ago in legal terms, and now non-economic damages comprise the largest portion of liability exposure.

Don't get me wrong! If a company does wrong or violates the law, I'll be a bulldog. I will not, however, join the trend of press release litigation.

Over the past year I have had the honor of serving as the Chairman of the National Republican Attorneys General Association. In this position I have spoken at numerous national and regional forums about the growing danger of an activist judiciary and government servants forgetting their roles and responsibilities.

The battle being waged has high stakes. Will we have a government that protects our inherent freedoms, recognizes the importance of self-responsibility to the concept of liberty? Or, will we continue increasingly along the path of the nannyization of our courtrooms and governments with the increasing belief that we must be protected from our own decisions through judicial legislation or lawsuits that warn us not to put our hands under the lawnmower? The former preserves opportunity for our children, the latter creates an arbitrary and coercive society.