Litigation Nation

In one of those media scoops, the Washington Post has published an article about the culture of secrecy within the Trump administration. What the author describes is a fear about writing things down. Employees meet in parks rather than discuss things in the office. They stop putting anything meaningful in email or in text-based collaboration tools. People prefer to say things in person, not in print.

Nowhere does the article explain why this is happening. It has nothing to do with an unusual amount of fear or paranoia within the Trump administration. If this is true, and it seems likely, it is traceable entirely to two factors: 1) fear of being quoted out of context in the major media by the likes of the Washington Post, and 2) the disclosure and discovery mandates that are part of litigation.

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Litigation is today as much a part of government as it is the private sector. Also, the United States has laws concerning freedom of information. Any citizen can ask specifically for all non-classified communications insofar as they appear in print. Any employee must turn them over when the authorities come calling. In practice this has led to more communication going into dark spaces, and that further means ever less documentary evidence of anything.

This is a fairly new trend in government, mostly due to the massive amount of lawsuits and investigations surrounding the Trump administration’s disruptive policies and those who want to stop him. Many processes of government are now tied up in the fear of documenting anything at all.

More broadly, these trends in government mirror what has already taken place in the private sector. I’ve lived to see the difference this has made. Twenty years ago, no one particularly worried about court discovery. Now it consumes the communications of even small businesses or any company that fears litigation or court discovery, which is pretty much every company but a family business. And maybe they should worry too.

The United States has transformed into a litigation nation. Every dispute is resolved through lawsuits. Many lawsuits are not even based on actual disputes but attempts to create a dispute in hopes of a payoff. Vast numbers of lawsuits are nothing but dressed-up blackmail operations. They are typically settled when the fees fall below what would otherwise be the court costs.

That means that blackmail and extortion have been wholly normalized and legalized.

The sheer volume of lawsuits in the United States is shocking. The federal judiciary handles more than half a million civil cases annually. State courts process millions more. There has been a 20 percent increase in federal civil cases from 1990 to 2020 and probably far more since then.

The number and frequency of litigation in the United States far exceeds other developed nations. For instance, the United States has five times more lawsuits per capita than Canada or the UK. This is not some kind of unique cultural propensity to sue. The reason has been explained by Justice Gorsuch: we have far too many laws.

The legal system incentivizes litigation. The United States employs a contingency fee model. The lawyers take cases without upfront costs to clients. They receive 30–40 percent of settlements or awards. This lowers the barrier to filing lawsuits, encouraging invidious, speculative, or frivolous claims, which rich companies pay to keep their names off the court docket and out of the press. It’s extortion. It’s the norm.

In most countries the loser pays. Not so in the United States, not typically.

The sheer plethora of ambiguous laws feeds the system. Americans view lawsuits as a first resort for grievances, from workplace disputes to consumer dissatisfaction. Anyone can claim a “hostile work environment” while “sexual harassment” lawsuits are notoriously manufactured out of whole cloth, smearing defendants and ruining careers in the most pitiless way. One has to wonder about the ethics of the attorneys who take such cases.

Then you have the problem of DEI, the hiring of people not on merit but on identity. When they cannot do their jobs, people complain. They might be fired but the result is a discrimination lawsuit. That’s a nightmare for companies so these people are kept on while working even less. At some point, they just become sinecures and symbols and they know this.

Further, media glorifies multimillion-dollar verdicts, creating a perception that litigation is a path to wealth or justice. This is compounded by a growing sense of entitlement and a decline in personal responsibility, where individuals seek to externalize blame through legal action. Every personal setback becomes an actionable harm.

Litigation is a massive industry. The U.S. tort system costs $400 billion annually, about 2 percent of GDP, according to a 2021 study by the American Tort Reform Association. This includes direct costs like legal fees and settlements, plus indirect costs like defensive medicine, where doctors order excessive tests to avoid malpractice suits.

The legal profession itself employs over 1.3 million lawyers—more per capita than any other nation—sustaining a self-perpetuating cycle of litigation.

Litigation clogs courts, delaying justice for legitimate cases. It erodes trust, as individuals and companies prioritize legal protection over cooperation. Small businesses, hospitals, and schools face existential threats from single lawsuits, while communities grow divided over contentious legal battles. The United States’ litigation obsession undermines social cohesion, replacing dialogue with adversarial combat.

Litigation brings out the worst in people. Best friends stab each other in the back to survive a plaintiff’s attack. People stop speaking to each other for fear of being deposed and subjected to perjury claims. Teams of workers shatter and people flee companies under the gun even when the claims are preposterous and everyone knows it.

Good people turn into monsters to avoid entanglements. They let their benefactors hang out to dry rather than stand up to evil with courage. Staying out of harm’s way is indistinguishable in practice from sheer cowardice. But this is the predictable way in which people who could otherwise help respond to any legal threat.

For this reason, one malefactor in a business or organization—even if every detail of the case is a complete invention—can wreck an enterprise for a generation. Litigation can last years, the longer the better because the lawyers keep collecting from the defense.

Typically settlements involve non-disparagement agreements (NDAs) so that the evildoers never face reprisal or even so much as normal press exposure. Even a small post on X can be the subject of more litigation.

This problem vexes American economy and culture far more than is advertised, precisely because of all the secrecy and fear that surrounds the topic. It has massively hobbled corporate and government communications. It is all profoundly unjust and yet it goes on daily.

There is no reason to doubt the Washington Post’s story but they get the cause wrong. Trump is not the problem. Trump is trying to fix the problem by reining in the administrative state, which is the mother of millions of lawsuits. Curb that problem and you cut the litigation that has tethered U.S. competitiveness and openness in communication.

Authored by Jeffrey A. Tucker at Epoch Times