" /> Overlawyered letters: January 2004 Archives

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January 6, 2004

Our curling ignorance

I take exception to your comment (Dec. 19): "Yes, there turns out to be curling outside Canada." This is after all an Olympic sport, though since no American team has ever proven to be competitive, you have fallen prey to the nationalistic bias most networks display (if none of ours are there, why mention it?). The sport is actually European in origin. Your comment seemed disdainful to Canada in general, and could be humorous, if it doesn't hide a lack of "non-US" culture so sadly associated with the American public in general. It would be disheartening to see what is touted as its think-tanks display the same flaw. -- Christian Houde, Montreal, Quebec, Canada

As if to upbraid us further for our curling-related ignorance, the Jan. 2 New York Times carried a story entitled "Blame Canada: Curling Sweeps U.S."

Head-on crash velocities

The following (Dec. 15) is inaccurate:

"a passenger was injured while riding in an Oldsmobile that hit another automobile head on at 50 miles per hour and a combined speed of almost 100 mph"

A head-on with both vehicles (of the same mass) going 50 mph is the same as a vehicle hitting a wall going 50. It will accelerate from 50 mph to 0 mph. Or was this something the lawyer said to juice up the payment? -- Frank Russo

Frank Russo's physics are incorrect. The vehicle hitting an oncoming vehicle will absorb far more kinetic force than the vehicle hitting a wall. See this Math Forum link for an explanation of why. Russo's correct to the extent he means to say that the speed is only one factor in determining how much damage is done. -- Ted Frank

An award for the judge

As many of your readers know, California's MICRA medical malpractice law allows a maximum compensation of $250,000 for pain and suffering. Three years ago, trial lawyers succeeded in opening up a major new loophole in MICRA. The survivors of a man who died of cancer had sued their father's doctor for allegedly underprescribing pain medication. Their lawyers argued that they should be able to sue not only under malpractice law but also under California's "Elder Abuse" law, which provides for unlimited damages. Although this argument undercuts the intent and spirit of MICRA, Judge Barbara Miller of Alameda County court ruled in its favor (see American Medical News, Mar. 20, 2000) and the family got a judgment of $1.5M against the doctor.

Two years later, Judge Miller got an award from the trial lawyers' local organization, not for anything in particular, just for being a great judge. This award was announced on the official government web page for the Alameda county courts. Apparently, the judges here do not realize that receiving awards from a private pressure group might be something to be ashamed of, rather than to brag about. -- Steve White, Berkeley, Calif.

Trial lawyers accountable?

Teachers, businessmen, physicians, and police officers are made accountable for their actions by the threat of lawsuits, fines or job loss. So my question is simple: why haven't we created a system that holds lawyers accountable for bringing suits that lack merit? Malpractice trials find the defendant liable approximately 30% of the time. That means 70% of the time, the physician wins. As a physician, if I were to perform appendectomies and only 30% of my patients turned out to have a diseased appendix, I would lose my license! Yet if you achieve a similar result in private practice as a trial lawyer, you will probably be free to go on practicing with no penalty whatsoever.

It seems to me that the answer might be to create a system that simply asks the jury to decide whether a civil lawsuit in which the defendant was found innocent of wrongdoing should be deemed "frivolous". If it were found so, there would be penalties (i.e. fines, professional reprimand, etc...) for the attorneys that brought the actions. -- R. Desai, M.D., Dayton, Ohio

At present, most American courts do in principle provide remedies for frivolous litigation, but those remedies are purposely made hard to use and unrewarding except in the most egregious cases. (In 1993, at the behest of organized lawyerdom, Congress pulled the teeth from what had been a relatively successful sanctions device, Rule 11 of the Federal Rules of Civil Procedure). Aside from reinstating a stronger-than-ever Rule 11 in federal courts and its equivalent in state courts, we are intrigued by the idea of confiding to the jury, rather than judge, the call on whether or not a decided case was frivolous or without merit -- if only because it would force some of our friends in the plaintiff's bar to decide whether or not they believe their own rhetoric about trusting juries. -- ed.