The Litigation Bias
These problems with the selection of the cases and facts that give rise to legal opinions make it difficult to evaluate legal problems prospectively. There is often little congruence between real- world problems and the law as found in legal opinions. For example, most legal opinions discussing the duty of a physician to obtain the patient’s informed consent also involve proved malpractice. The opinions do not discuss the malpractice because it does not involve any new issues. An attorney reading the opinion may not properly appreciate the importance of the underlying malpractice and attach too much significance to the technical requirement for informed consent.
Taken in the long view, the common law tradition has been critical to the development of our democratic traditions. In late–twentieth-century America, reliance on the common law tradition of deriving law from judicial opinions has given false direction to legal teaching and practice. The fundamental problem with deriving legal rules from published legal opinions is that most law practice does not involve litigation. Focusing on litigation ignores the role of lawyer as negotiator, conciliator, and counselor, and it distorts the attorney’s perspective on the management of nonadversary situations: “From the point of view of the parties to a lawsuit, the costs are in vain; almost every litigated case is a mistake.” [Fisher R. He who pays the piper. Harv Bus Rev. Mar–April 1985;150–159.] It ignores the issue of prospective planning to prevent legal problems.