Overlawyered letters

I was horrified to read your Aug. 27 piece on the Ohio court that allowed a TV crew to film the deliberations of a jury. As someone who has served on seven juries, both civil and criminal, I firmly believe in the principle that what happens in the jury room should stay in the jury room. Deliberations are difficult enough, having to reconcile diverse viewpoints into a verdict, without having the public watch. The specter of people posturing for the camera, or being afraid to speak their minds, is truly frightening. I know of no one, except perhaps a professional actor, who is able to be entirely honest and unselfconscious in the presence of a camera.

It does not matter whether the presence of the camera affected this jury in this case. The potential for the effect is there. We try to remove all outside influences from the jury room, so that the jury can concentrate on determining the facts in the context of the law. This runs entirely counter to that. Will jurors now be allowed a "lifeline" call to a friend if they get stuck?

The defense counsel in this case would seem in my opinion to have been less than competent. He states that "I did not think that [the judge] would go along with this, so I did not formulate an opinion one way or another" and then seemingly goes along because everybody else is. Even if he agrees with the decision, it's his job to have an opinion and to decide how this affects his client.

In my jurisdiction (Los Angeles County), the judges are fond of telling jurors that their participation is one of the few ways that they can have a direct effect in our democracy. Having a camera in the jury room is no different than having a camera in the voting booth.

If you want to see how a jury works, rent "12 Angry Men." If that is too dated, then remake it. "Reality TV" does not belong in the jury room. -- Art Kaufmann, Los Angeles, Calif.

Posted by Walter Olson at 12:13 AM | Permalink | TrackBacks (1)

This summer's "doctors won't treat lawyers" episode was a case study in media manipulation. It started when one physician, South Carolina surgeon Chris Hawk, got frustrated and began looking for a way to lash back when lawmakers in his state adjourned without doing anything about the medical liability situation. Dr. Hawk introduced a resolution to the AMA House of Delegates proposing that it's ethically OK for doctors to refuse to treat trial lawyers until something is done about the medical liability crisis.

To repeat... this was ONE doctor exercising his right to introduce a resolution at the AMA annual meeting in Chicago. Hundreds of resolutions are presented to the AMA House of Delegates, generally with support from an identifiable group of physicians. Dr. Hawk had no body of backers for his idea, nor was his own medical society in South Carolina on board with it. Instead of taking the hint that nothing good could come of his public temper tantrum, he decided to go it alone.

In the absence of any evidence that Dr. Hawk's peers were lending any significant support to his position, this should have been a non-news-story by any standard. Instead, it resulted in weeks of media coverage. And that coverage was stirred up quite deliberately through news media communications and even press conferences from the "usual suspects" who oppose doctors on the tort reform issue -- the trial lawyers themselves, so-called consumer groups that act as their fronts, and lawmakers allied with them. It was purely artificial outrage, because these groups knew there was no chance Dr. Hawk's resolution was going anywhere. And yet the resulting media coverage sometimes made it appear that there was a big trend under way and that the medical profession was on the point of endorsing a "don't-treat-trial-lawyers" campaign. Here in Pennsylvania, a Democratic lawmaker even introduced legislation to make it unlawful for a physician to refuse to treat a patient based on the patients' profession.

What happened at the ABA House of Delegates in Chicago? As it turned out, fellow physicians were so opposed to Dr. Hawk's measure that they never even voted on it -- he withdrew it by popular acclaim.

But the damage was done. Advocates of medical liability reform spent the summer doing damage control, lawmakers cited the episode and used it to defeat caps on noneconomic damages, and the resulting fallout has harmed medicine's cause more than anything else I've seen in recent years. Thanks a bunch, Dr. Hawk. -- Donna Baver Rovito, Allentown, Pa.

See also adjacent letter, and letters run Sept. 31 and Oct. 22, 2001. For a recent anecdote from Connecticut, see this Law.com account. -- ed.

Posted by Walter Olson at 12:11 AM | Permalink | Comments (2)

Doctors want to refuse service to certain lawyers? I don't condone refusing necessary medical treatment to anyone, but this could be the start of what may be the only way to get rid of so many destructive, counter-productive lawsuits: refuse service to those who are most likely to bring such lawsuits. Perhaps if a trial lawyer who has a record of frivolous lawsuits is refused service by plumbers, electricians, and babysitters, refused access to restaurants, dry cleaners, and auto shops, and denied entry to public pools, playgrounds, and theaters, the tort reform so necessary in this country could move forward without the cries of outrage from the trial lawyers association.

Then again, they'd probably just sue. -- Ray Burtoff, Mount Laurel, N.J.

Posted by Walter Olson at 12:05 AM | Permalink

As someone with experience in the examination of cruise ship passengers (U.S. Customs Inspector since 1972), I take exception to Ted Frank's characterization (Jun. 22) of the incident in which a woman was taken into custody on the strength of a mistaken warrant arising from a food infraction at Yellowstone Park. Obviously, someone erred in entering this lady's name in any database. However, when it was determined that some sort of warrant existed, the officers at the pier HAD NO CHOICE. They have no discretion to determine if the warrant is important or trivial; that is for others to determine.

No, we are not laying aside our efforts to prevent terrorists from entering the country. Anyone who is found to have any kind of warrant will be taken into custody, and turned over to those who have the capability to determine the proper disposition of the case. Clearly, in this instance, the magistrate made the reasonable decision. That is his job. Finally, you seemed to imply that there was somehow something sinister about the timing -- 6:30 AM. In Seattle, cruise ships arrive at 6 AM. The carrier desires to get the passengers off a quickly as possible to enable them to ready the ship for the next group with, usually, a 5 PM sailing. So, there is nothing unusual about the hour.

And there probably is a good reason for the Yellowstone Park regulation that instigated the whole thing. Unsecured food quickly attracts bears. This lady would have been very unhappy if a bear had invaded her campsite to get her marshmallows. -- Cameron King, Seattle, Wash.

Thanks for writing. However, I must take exception to your exceptions. While perhaps it is the case that the front-line Customs officials had no discretion but to handcuff and shackle a passenger regardless of the seriousness of the warrant, this still means that someone at a higher level has decided that this is a good use of limited Customs resources. (Wouldn't it be better to do a comprehensive (or, at least, a more comprehensive) search for serious warrants than what I understand to be a random search for all warrants?) Even viewing it as a taxpayer, rather than imagining myself in the flip-flops of the jailed vacationer and her nightmare, it seems to be unprofitable to devote so many person-hours to the supposed non-payment of a $50 fine. The prosecutor, who did have discretion once the case was delivered to him, wanted to have still further proceedings on the issue.

I am not proposing that parkgoers should be free to scatter sugary treats willy-nilly; I have no doubt that one should not leave marshmallows unstored in the wilderness and personally do my best to avoid bear-related incidents. But I describe the offense as trivial because the government has decided that it merits no more than a $50 fine. -- Ted Frank

Posted by Walter Olson at 12:02 AM | Permalink | TrackBacks (1)