Second stop was a home improvement store, where she was interested in purchasing carpet for our living room. The store has a policy that they have to come out and measure the room for a cost of $35-which is "credited" to the purchase of the carpet. My wife asked if we can have the measurements-you know, in case we decide not to purchase the carpet from them. There answer was no. Why? They told her it was because the home improvement cannot be responsible if we use those measurements to purchase carpet from somewhere else and they are inaccurate.
I had to ask, seriously? With the right tools, replacing a watch battery is not exactly brain surgery. Isn't there some insurance that department stores can purchase in case of such a tragedy? Can't department stores make everyone sign a waiver or something? And we have to pay someone to take measurements-a task that mankind has been successfully performing for centuries-and home improvement stores have such little confidence in those measurements that we cannot receive the results?
It made me realize that increasingly, we are living in a scared society.
In addition to being afraid of terrorists, the swine flu, Muslims, President Obama, socialism, taxes and aliens-- we are afraid of being sued.
Actually, corporations are terrified of being sued. Although very few cases actually make it to court, and even fewer win, the threat is concerning enough for companies to implement policies and procedures that both manage their risk and hinder consumers with a landscape of legal nuisances.
Negotiating our way through society is becoming paralyzing. Trying to perform some of the simplest tasks requires that we swim our way through a series of privacy laws, legal waivers, pages of legal documents and the signing away of our rights, such as agreeing to arbitration in lieu of litigation.
For consumers, the agreement is usually only on the corporation's terms. There are pre-printed forms, which on occasion even contain illegalities, for which if the consumer does not agree to the terms-there is no deal. There is no bargaining, there is no meeting of the minds.
How many people have read and understand their home loan, insurance policies or even their car loan? We recently worked with a real estate agent who did not understand the difference between a disclosure and a warranty.
Corporations employ an army of lawyers who fight conservatively. Despite the fact that the average Joe rarely defeats a large corporation in court, and only in the most egregious of circumstances, the last thing corporations want is a sympathetic jury controlling their fate.
Professionals, like doctors, fear malpractice lawsuits and often prescribe conservatively in order to protect themselves. If you go to the hospital for surgery, they will ask your name upwards of a dozen times and as well as what part of the body is being operated on. Despite common opinion, malpractice lawsuits are difficult for an injured party to win-however, when they do, the financial award can be significant.
This conservativeness has trickled down through the corporations to their employees. In healthcare particularly, where HIPAA reigns, employees love to tell you it's "the law" or it's a "liability issue." It does not matter if it is silly, unlikely or even untrue. In fact, employees often cannot cite the law, or provide example of the liability, or even know if anyone has ever won a case on that claim.
The problem even exists between companies . . . as many organizations "can't give out that information." Often the most insignificant of information requires parties faxing waivers and releases back and forth. Then they will still have to ask the lawyers if they can provide that information.
Finally, it is not just corporations and employees--it's everyone. I've even seen people at garage sales trying to "protect themselves."
Unfortunately, it is only going to get worse-our society is becoming more litigious, as everything is someone else's fault. The fear of these lawsuits and the reaction to that fear will increase-furthering burdening consumers and patients. The challenge is balancing real and sensible legal concerns with overreaction and irrationality. The challenge also encompasses dispelling some of the legal myths that lead to overreaction-like the infamous McDonald's coffee case.
More often than not, it is a matter of reasonableness. It does not seem to me that reasonableness should be a difficult standard for corporations and professionals. The truth is that anyone can be sued for almost anything-winning is a different matter.