T Nation

Kill the Lawyers


Interesting insight into our litigous society. I think the author makes some valid points.


Jack Kelly: Be nimble, be quick
What slowed down disaster response to Katrina? Let's look for the lawyers
Sunday, September 25, 2005

We might have had a faster response to Katrina, and prevented the 9/11 attacks altogether, if only we'd followed the advice of Dick the Butcher.

Dick the Butcher is the character in Shakespeare's "Henry VI" who says: "The first thing we do, let's kill all the lawyers."

Dick is a repulsive character. Shakespeare's point is that lawyers are vital to the functioning of civilized society. They are the oil in the gears of commerce, the engine of democracy.

But when we have too many lawyers, and we pay them too much deference, that oil can turn into sand.

New Orleans Mayor Ray Nagin reportedly was reluctant to order a mandatory evacuation for fear of lawsuits. God knows why Gov. Kathleen Blanco dragged her feet -- dithering seems to be her modus operandi -- but I suspect lawyers had a lot to do with it.

My friend Ralph Peters told me his sources in the Pentagon told him lawyers for FEMA and the Department of Homeland Security spent the weekend before Katrina struck arguing about what they could or couldn't do -- the emphasis was on couldn't -- absent certain permissions from Blanco.

Former members of Able Danger, a military intelligence unit, have claimed they had identified hijack leader Mohamed Atta and the members of his cell more than a year before 9/11, and had tried to pass this information on to the FBI, but were forbidden to do so on the advice of Pentagon lawyers.

There are lawyers who can act promptly and decisively in a crisis (see Giuliani, Rudy). But they are the exception rather than the rule. By training and temperament, lawyers are more likely to flash a yellow light than a green one.

It is this fundamental characteristic, my friend Tom Lipscomb told me, that caused a young Donald Rumsfeld to argue that lawyers should be barred from holding public office. It was probably not helpful that both Michael Brown, the head of FEMA when Katrina struck, and Michael Chertoff, his boss at the Department of Homeland Security, are lawyers.

The pernicious impact lawyers can have in a crisis is compounded by bureaucracy.

Bureaucracies typically move at a torpid pace, and insist on following the rules even when the rules make no sense. So firemen were prevented from rescuing Katrina victims until they had received a lecture on sexual harassment policy.

The more layers of bureaucrats through which a decision must pass, the slower the response. Yet Washington's response to any crisis is to create larger bureaucracies.

Consider the Department of Homeland Security. It was created in response to the intelligence failures of the FBI and CIA leading to 9/11, but did nothing to address the intelligence failures of the FBI and CIA.

It made enormous sense to combine the Immigration and Naturalization Service, the Customs Service, the Border Patrol and the Coast Guard into a single agency to guard our borders. But throwing in FEMA, the Transportation Security Administration and the various other cats and dogs created an unmanageable witches' brew in which there would inevitably be more turf battles than real reform.

Having mucked up DHS, Congress, acting on the recommendations of the 9/11 Commission, proceeded to create a DHS for the Intelligence Community.

The primary purpose of the Director of National Intelligence was not to address the intelligence failures of the FBI and CIA which led to 9/11, but to subject the various defense intelligence agencies (mostly blameless in 9/11) to an additional layer of bureaucratic supervision. We needed more and better spies, analysts and linguists. We got more managers.

Organizations have consequences. There are thousands of good people in FEMA and DHS who are frustrated by the sluggishness the bureaucratic monstrosity they are in imposes.

Leaner, more focused organizations are better. FEMA and the Transportation Security Administration should be withdrawn from DHS.

The only bureaucracy which moves rapidly in a crisis is the military. I think it would be a mistake to make the military a "first responder" in natural disasters, but FEMA should be reorganized along military lines.

And the head of FEMA should always be either a National Guard general or a Coast Guard admiral. There are some jobs which require adult supervision. Too many of these are held by political hacks.


Part of the problem is that people use the skills of lawyers incorrectly.

Lawyers are not in charge of anything, they aren't supposed to tell what you should or shouldn't do, they simply identify risks. The people actually in charge simply have to decide whether or not the risks are justified.

However, these days, lawyers are actually given de-facto control of many activities, which generally means it is nearly impossible to get anything done -- because there are always risks.

You should know what you want to do before you talk to a lawyer and simply have them help you minimize the risks.

Anyway, part of the problem isn't the fault of lawyers, it is the system that allows them to win with frivolous lawsuits -- teaching everyone to do nothing in order to avoid all risks.

Okay, perhaps over simplified, and certainly too kind to lawyers...


Absolutely. When the trial lawyers have everyone checking in with them first, they're the ones running the show. And everything does come with a risk, but in today's society where everyone considers themselves a victim and aren't responsible for themselves, personal responsibility gets thrown out the window.

In addition to being a steely eyed fireman, I'm also a residential home inspector. My professional liability insurance is $450.00 a month! Can you imagine what a surgeons is?!

Crazy I say.


Thats why we need a health plan like all other industrialized nations,but insurance,drug co. docs etc. make to much off of us the way it is now.Its a license to steal.


And what does this have to do with anything?

Advisers are there to advise, leaders are there to lead. Do not put an adviser in a leader's role. Simple.

If you guys are going to have a group like FEMA run by bureaucrats, you will want to plan your disasters 12-18 months in advance. Get someone with balls who can make a decision and has the power to make sure it gets done.