Changing the American legal system

[Ethel]

Um ... Ethel, I think tp was addressing sf, and sf was addressing tp ... about the lawyer jokes.

Oh, aye. I didn't miss that. Was only apologizing for my own snit.

[nerdanel]

Thanks Ethel. I'm afraid I'm going to have to delay one more time in responding to the three remaining substantive posts, beginning with yours. I'm sorry for being so slow in responding. I bit off a lot with this thread, and I think I've been wasting too much time posting elsewhere (something I think I will curtail entirely for now, as the diminishing positive returns have now dropped to zero). I should caution you that as interesting as I find the points you made, I know very little about medical malpractice, so my response will be very much that of an uninformed outsider.

SF, I can respond to you tonight, since that takes less thought in this case. I know you were joking, so I'm sorry to give you a serious response. To answer your question, no I didn't find the jokes particularly funny. I think we all know when entering law school that lawyer jokes, ranging from the hilarious to the crude and calculated-to-hurt, come with the terrain. The best thing to do is not to take any of them personally, which I don't. But it's past my ability to find them funny.

See, the thing is, I spend most of my life right now almost exclusively around these people who are so vilified - law professors, practicing attorneys, law students, and other legal professionals. Not only that, but many who I know have come from the corporate legal world or are heading into it - the alleged worst of the worst - the ones assumed not to give a damn about morals. And yet, they're mostly pretty nice people. Decent people. People I'm proud to know. People who worry about doing what's right, who at times will spend hours agonizing over ethical issues. People who can at times reflect what's bad about humanity, but who can also reflect what's amazing about it.

I accept that it's a group about which people assume the worst, and that this assumption is partly due to some of the group members' actions. I accept that it's a profession that it's socially acceptable to insult in a way that few others are insulted in polite conversation. Mostly, I'm pretty indifferent to it. I don't feel hurt by it or anything. I just can't lighten up enough to actually find it funny.

[Ethel]

Thanks Ethel. I'm afraid I'm going to have to delay one more time in responding to the three remaining substantive posts, beginning with yours. I'm sorry for being so slow in responding. I bit off a lot with this thread, and I think I've been wasting too much time posting elsewhere (something I think I will curtail entirely for now, as the diminishing positive returns have now dropped to zero). I should caution you that as interesting as I find the points you made, I know very little about medical malpractice, so my response will be very much that of an uninformed outsider.

Ack. Please don't give it another thought. I spent 4 years managing the computer systems at a hospital, and that's why my thoughts tend that way. But medical malpractice is really a very tiny 'branch' of the legal system. I'm sure you are more interested in fundamentals.

[Jnyusa]

Was only apologizing for my own snit.

I'm having a snit today, too! It's been a snitty day.

Jn

[JewelSong]

I'm having a snit today, too! It's been a snitty day.

Lots of that going around this time of year...As much as I love the Christmas season, it does seem to bring out the snit in people, myself included.

We need a "snit" icon.

[Jnyusa]

?


maybe not quite snitty enough. I like the dark blue one giving black looks at the ground.

Jn

[Voronwë the Faithful]

[nerdanel]

ETA All you people having a snit in my thread! THIS IS NOT THE SNIT THREAD, darn it, and under our current legal system, I'm pretty certain I can sue you for something or other! Like cybertrespass which is actually pretty inapplicable here, but we ignore these minor details. If you don't want it to happen, you'd better get crackin' on discussing how to change the system. Which, y'know, is the point of this thread in the first place.

Well, at long last, I'm back to reply to your post, Ethel. I'll respond to Jn's next, and then Voronwë's. Although you're right that medical malpractice is only one small area of the law, your post spoke to the larger question of when to step outside of the adversarial framework.

I don't think there's any legal system that can produce justice, as you point out. We will never even reach consensus on what "justice" means. More fundamentally, Voronwë cut to the heart of the matter in saying, "The flaws in the system are not flaws in the system, they are a necessary reflection of the flaws of the imperfect human beings that necessarily make the system work." Even a theoretically perfect system (not that we could all agree on what constitutes one) would still fall prey to "people flaws."

(I want to put a cluelessness disclaimer here. I have no real-life experience, except for brief summer internships and clinical experiences - which scarcely count. Thus, I don't actually know what I'm talking about. But that's never stopped anyone in the history of the Internet from expressing an uninformed opinion, so why should I be any different? )

I think it is quite clear that adversarial proceedings are NOT the right answer in all cases. And, I think that one area where we might consider department from traditional litigation is where non-financial returns matter to parties. In my opinion, it's inappropriate for parties to use the legal system for their emotional vindication, to try to produce an apology or to experience the catharsis of their opponent being pronounced guilty, without more. (An interesting discussion arose on this point in Anthy's thread on b77, regarding American mentalities while suing, actually.) Yet people do so all the time - in part because they don't know of alternatives to traditional litigation or none exist. In general, I have read that in a fair number of tort cases, including medical malpractice, the plaintiffs will state that they "don't really care about the money" - they just want the defendants called to task - or in some cases, they just want an apology! (My friends who have done special education clinicals have seen these attitudes in that context. Parents will come in, furious at the supposed wrongs that local schools have committed against their children, and announce that they want to sue. After they've calmed down, though, most (a) want the problem corrected for their children going forward; (b) want an admission of wrongdoing. Sometimes they simply have to accept that even if they can receive (a), they're going to have to move on with their lives without getting (b).)

In the medical malpractice context specifically:

- Regarding the idea of an arbitration board, I would just want to know about the politics and biases involved. I've heard all manner of things about doctors being unwilling to testify against or stand in judgment of other doctors. I wonder what doctors would be willing to serve on an arbitration board and how such doctors would be viewed by the rest of their profession.

- Also regarding arbitration, I know VERY little about it, although I was aware of what Voronwë wrote: "Contractual arbitration (where parties agree that any dispute between them will be submitted to binding arbitration instead of litigated in court) is increasingly becoming one of the main tools that corporate America uses to consolidate its power. Arbitrators are notoriously pro-business, and arbitration agreements are usually imposed upon individuals of lesser power, whether its an employer requiring new employees to sign an arbitration agreement as a condition of employment, or insurance companies requiring their customers to agree to one as a condition of getting insurance."

I wonder if you (Ethel) have any sense for how this might translate in the medical malpractice context? I must admit that my first concern when I read your post was whether a medical arbitration board would be similarly likely to find in favor of doctors.

- As far as the idea to limit recovery to actual damages...on its face, it's always attractive to remove the possibility of punitive damages, since we often hear in the news about prohibitively large awards against defendants. (I daresay a lot of people asked about "changing the American legal system" would say that the first thing we should do is to get rid of large damage awards, beginning with punitive damages, so as to discourage people from litigating.) As I understand it, the two main arguments for punitive damages are to punish an egregiously bad actor and to deter the actor from committing further misconduct. Do you have any thoughts on the validity of these aims? If you think they are generally valid, what would be the reasoning for denying punitive damages specifically in the medical malpractice context? No worries if you don't have thoughts on this, but if you do, I'd be interested in thinking through this further.

[Sassafras]

I've heard all manner of things about doctors being unwilling to testify against or stand in judgment of other doctors. I wonder what doctors would be willing to serve on an arbitration board and how such doctors would be viewed by the rest of their profession.

I have a partial answer for this although you need to bear in mind that the information is anecdotal insofar as few doctors are willing to go on the record. The majority of doctors will close ranks even when faced with an incompetent fellow doctor. The few that are willing to testify for the prosecution in a malpractice suit are ostracised and subsequently frequently brought before the board on trumped-up charges. The object being, not to take away their license to practice medicine, but to run them out of town.
To punish them for breaking ranks. The AMA, in particular, is very much an old boy's network.

[Voronwë the Faithful]

ho boy, don't get me started about the myths about large damage awards and punitive damages!

[nerdanel]

ho boy, don't get me started about the myths about large damage awards and punitive damages!

Only if you're willing...I would love to hear your perspective. This is actually the specific reason I had the disclaimer about cluelessness - there's someone in the discussion who actually has practical experience in this area.

I DO know that the tales of unreasonably large damage awards, incl. OTT punys, *are* largely myths. I had some good conversations with my torts prof first year about this, and she gave me some papers with statistics on the subject that entirely changed my perspective. I see, rereading my post, that I didn't make my understanding of this clear. In my convoluted mind, I was qualifying the language I used in the first two sentences of the last paragraph of my last post because of said understanding - but that's only clear in my own head.

ETA Sass - thanks, that's what I thought. I'm interested to see if Ethel, too, has any anecdotal info to share, if she saw anything while working at a hospital.

[Whistler]

My wife was involved in a (laughably minor) auto accident several years ago. I won’t go into details, but it came down to this: A lady stopped her car suddenly and my wife bumped her fender ever so slightly. My father, who was dozing in the back seat, didn’t even wake up. Still, my wife got out to check on the lady. At first, the other driver didn’t realize that my wife was the one whose car had struck her. When this was pointed out to her, she began to scream and moan in agony. My wife looked on in amused puzzlement at these rather unconvincing theatrics.

Suddenly a man (who had not been in the car) appeared out of nowhere. He was her husband. Where had he been all the while, watching his wife drive to make sure that she didn’t have an accident? Conveniently enough, he happened also to be a lawyer.

Also conveniently enough, the lady’s brother happened to be a chiropractor who provided “expert” testimony (of course there was a lawsuit!) that the lady had been severely injured, her life essentially ruined.

There is much more to tell, all of it foolishness. Anyway, they wanted some astronomical sum in damages. The judge said, certainly not! They were plainly liars, all of them, and he told them as much to their faces.

So he awarded them only $30,000. Excuse me? Thirty thousand dollars for perjury? Our lawyer was delighted to have “won” the case, and he never understood why we did not share his satisfaction at the outcome.

The plaintiff’s family took their “loss” badly. That night, they sneaked into our yard and tore up our Christmas decorations.

Ah, justice!

[Sassafras]

[sauronsfinger]

Whistler
that story of yours would make a wonderful movie -- or at least a TV episode .... did you end up paying the 30K$

I hope not.

[Whistler]

No, the insurance company paid, despite the fact that they regarded the "accident" as having been deliberately caused for purposes of suing.

But of course, everybody pays in the end when such suits are settled in this way.

[Lurker]

TP this is a great thread! In fact, I printed it out and I'll show it to my colleagues at the firm and ask for their opinions, something to talk about during lunch aside from the Amazing Race and The Apprentice, which had their finale this week.

First off, I'm a Canadian Barrister (Lawyer) for two years now. I was offered a position at a huge New York City firm (wine and dine) when I graduated and they would even pay for my NYC bar review, free housing for a month or so, since I have an MBA/JD under my belt, which is they say "difficult" to find in a potential asssociate. Yes I'm one of those ambitious, arrogant, insert more of Voronwë's flowery descriptions here. Unfortunately, I love my wife more than my career so we ended up moving back to Canada after two weeks. (She watched too much of that Keanu Reeves flick about the devil stuff. )

Anyways, like I said at B77, I used to specialize in Corporate Law and Civil Litigation for a huge firm but after I ended up in a hospital room due to stress which scared my poor wife, we both decided that I accept the offer of a small law firm (my boss at the huge firm got really upset) which consists of 3 partners and 4 associates (kinda like the series, The Practice) who gladly accepted me after I turned down their initial offer when I graduated. I got a huge pay cut but I love the clients eventhough they can't pay you much but they would drop in at my office and give me cookies they baked or chocolates, or show me pics of their vegetable gardens or their grandchildren. Very, very personal. I now specialize in Tort Law, Civil Litigation and sometimes Immigration Law.

Enough about my arrogant, egotistical self, now I have to answer a few questions.

(1) What, exactly, is wrong with the system?

I think Voronwë answered this question better than I can. Plus the fact, I think the Canadian system is more or less similar, except that we dress up for court (a black robe (similar to the judge) and a white tie) and we call the judge, My Lord instead of your honour. I might add Judges who are biased about some issues, but like Voronwë said "we're only human."

(2) Power imbalances within the system

IMHO, we can't do anything about it. It's like society, the rich and the poor. As an attorney without the legal backing of large firm, you have to treat all clients in the same capacity you will treat a "A-list client". That's what I always do, who cares if the defendant has money, you go out there and show your client that you've done your best, pull some strings, ask some favours (in a good way) just to win his case. I've done that, being genuinely nice to people has its rewards. If you lost because the other party has money and the legal strength, well, at least at the end of the day, you wouldn't blame the system for being unfair, you just tell yourself, I did my best, there's nothing I can do about it. It's in the juries hands or the judge.

(3) Assimilation into "the system"

I guess in the legal system, there is always no friends and no enemies, IMHO, of course. For me to be able to work in the system, you don't see the prosecutor or the big firm who kicked your butt as your enemy, I try to work with them, sometimes, if I see the other lawyer at say The Court House (a club/bar frequented by sharks err lawyers here) I talk to them, maybe one day I can ask them for advice or help in a case I'm doing.

I don't know if I answered your question correctly. I have a business background so I am always finding a "win-win" situation.

(4) Adversary system (do I need to explain what this is?)

I have the same line of thinking as Voronwë.

(5) Indigent clients

I remember when I was a kid when my dad took me to the court house on Sundays to watch him help indigent clients. My grandparents would often say that we would have been rich if not for my dad taking on lots of pro bono. He even accepts other forms of payment if the client is unable to pay, like gardening, housekeeping, stuff like that. In fact, my relatives still think one of his clients turned againts him when a violent robbery took place at our house when my parents went on holidays when I was a kid. I was a witness to the crime and they think the only reason they didn't kill me because they owe my dad. (Something I don't want to talk about right now. Sorry.) My dad would just shrug it off and say it could be anybody, except that he didn't ask his poor clients to do housework anymore. He just have them pay what they can or a thank you is enough. Even when he became a partner later on, he never turned down a poor client. It just makes him upset when a client don't even say thank you, since it's free, and they just leave when they win the case.

I followed my dad's footsteps and take pro bonos on Sundays, except that my doctor friend told me to slow down since I'm not superman.

(6) Perception of attorneys

I don't see my clients as another "cash cow" as we call it in business school. I get to know them on a personal level. Some of my clients even tracked me down from the large firm to this small one. I'm not the "best attorney" but it's the way I handle their cases that makes them refer their friends to me. The problem is most firms will tell you that you shld. be extra careful when dealing with this client or give it your 100% on this client and those in the bottom of the food chain, who cares! I treat all clients to the best of my ability.

With regards to punitive damages, there is a $250,000 cap here.

[Voronwë the Faithful]

Lurker, thanks for that response. I remember noting at some point at b77 that you were an attorney, but that was literally all I know. I hope you didn't take offense at my comments. I know that there are many good, honest people who work for big corporate law firms. But they do pay a price (as you did).

I did not know that there was such a low cap on punitive damages in Canada. So even in a large case with compensatory damages in the millions, there is a $250,000 limit in punitive damages? Interesting.

[Lurker]

Yup. No million dollar cases here.

No offense. It's not fun anyways, the partners will literally call a cab company to pick me up at my place even when I was sick cause I'm the only one the client would speak to. (My wife doesn't know I left for work until I call her.) There I was with a flu, coughing and I was still working. Slave drivers, I tell you! My being a hardworker... okay.... somewhat workaholic doesn't help at all. I was billing more hours than I should have that even the partners were telling me that they can't keep up (that's a joke I guess) and my colleagues are telling me to slow down cause I am making them look bad. I'm not doing it to make them look bad, I try my best to help the clients. I hate it when we have the meetings and they award prizes on the spot (vacations, theatre tickets etc...) I could feel a hundred evil eyes on me and plus the fact, I'm not very good at compliments. I realized I'm on the "fast lane" when one of my clients commented that he actually told one of the partners that I belong in the "upper floor" (partner's offices) and he wishes to see me there in a couple of years. Other clients were also telling the partners about me, that's why they really got upset when I left. The first time I wanted to leave for a smaller firm, they go, NO, and telling me I should think about my clients, blah, blah, . They were good, man, used my weakness againts me. They still reluctantly let me go when I was recovering. The huge pay cut had a huge impact on our lifestyle, we moved from a nice rented condominium complex to an apartment. Apartments don't usually rent their place to lawyers so I had my wife put down I'm self-employed.

I got a client off the hook for pushing (small time) and now my conscience is driving me nuts. Freaking police don't have enough evidence againts him and my client told me he's not going to do it again but who knows, right? My wife goes, no wonder you're not afraid walking the streets at night, cause you are partly to blame for putting them back on the streets. I go, if the cops have done their homework they wouldn't be out in the first place.

TP,
How about trying juvenile delinquents as adults? What's your take on this? They are old enough to know what is right from wrong? Why give them special treatment.

[Thewhitetree]

Lurker, oh that must mean he got off on a technicality.

[nerdanel]

Just dropping in to say that I plan to return to this thread on either Thursday or Friday. Sorry, folks.