April 2003

The Board's Work

by Lindsay Thompson, Bar News Editor

Seattle, February 6 and 18, 2003 — Tort law continued to roil the waters as the legislative session went into its second month, and a business coalition got a slug of bills introduced to make all kinds of changes to how lawyers go about representing clients. The daftest I heard was one that would require lawyers planning to sue doctors to give 90 days' notice, and would require the Bar to discipline any who didn't.

But this is big stuff for lots of our members, so the board held two meetings in Seattle to try and arrive at positions on what we'd support and oppose in the Legislature. Because the legislative process is so dynamic, trying to take legislative positions is kind of like what Wayne Gretzky said about the puck in hockey: You gotta figure out where it's going and be there to meet it.

WSTLA President Steve Toole gave the governors a letter and some sheets analyzing the known legislative proposals — mainly, at that time, to cap jury awards and set a different standard of proof for suing doctors and hospitals — from the trial lawyers' standpoint. He urged the board to go ahead and vote on taking positions at the meeting.

Jan Eric Peterson, who is a god of the trial lawyers' bar and a respected former WSBA president, appeared, speaking for himself, and recounted how the tug of war over tort litigation has gone on for his entire career. He urged the board not to be talked into not taking positions perceived by many as defense vs. plaintiffs' bar issues. Peterson said the proposals to regulate lawyer fees, regulate how we discipline ourselves, and create special standards of proof for some that are different from others — while being offered in the context of tort reform — would affect all civil cases and thus all lawyers who practice. Look at the big picture, he urged, and look out for the interests of all WSBA members by opposing ideas that are just bad ideas. He, too, urged the board to act sooner rather than later.

Jim Macpherson, who has been the Defense Trial Lawyers' liaison to the board for years, and Jim Berg, their president, appeared and spoke on the flip side of the case. They counseled deliberation. Just because GR 12 allows you to take positions on things doesn't always mean you should, they argued. If it will be contentious among members on different sides of the issue, the board should sit the issue out.

WDTLA's position on specifics was less clearly formed. Some things they thought members would support conceptually, but not in the sometimes poorly worded form of the first rush of bills on tort reform. Berg expressed concerns about the proposals that would affect the change of standards of proof in medical malpractice cases.

The meeting, convened midafternoon, was a short one. It was apparent there wasn't a consensus on what to do, if anything. So the board adjourned, subject to the call of the president.

That call came soon enough, and the board reconvened at the Bar office February 18. This time the situation was clearer. The WSBA legislative affairs director presented the board a list of some two dozen changes various bills proposed to make this session. After some preliminary discussion about some standards for deciding if legislation presents an issue the Bar can or should take a position on (proposed by a committee chaired by President-elect Dave Savage), and some wrangling about the best way to decide what positions to take (and a couple of efforts to vote them up or down as a package), the board tackled them more or less one by one, and in several hours' work made decisions about all of them.

In his memoirs, Henry Kissinger commonly referred to diplomatic negotiations as Kabuki dances — precise, ornate, complicated, and operating at several levels of meaning all at once. The discussion on tort reform is always like that — this year and years past — because at heart people feel warmly about these issues: They have important consequences and they always represent someone trying to hold a thumb on the scales of justice for someone else. So there's a healthy dose of self-interest involved in such legislation.

For lawyers there's some of those kinds of considerations as well, plus the larger interests of the public and WSBA members generally to be factored into the discussion. There are some things one side or the other clearly favors, but politically it's hard to come right out and say so. There are always members who believe the Bar should be on record with nearly as many positions as it takes on things. All of these things get processed into a very polite, high-minded tone of discussion, very Kabuki-like.

So the board falls into those three general groups: support, oppose, do nothing. Within those groups the membership moves a bit, back and forth, depending on the issue. I could go on at length about the debates, and who voted where on what, and it would be about as interesting to most readers as the European Union's Common Agricultural Policy. Instead I am going to list the topics and the action taken. Keep in mind where the board voted to support or oppose, it was based on a determination — by each member's standards and the guidelines they adopted — that somehow the issue fell within the Bar's right to take positions under GR 12 on things affecting the administration of justice. Want to know more? Ask your governor.

Here's the list (vote totals vary because three governors were absent during different parts of the meeting, owing to client conflicts):

1. Elimination of joint and several liability except where tortfeasors acted in concert or by agency: No position, President Dick Manning breaking a tie.
   
2. Fault under RCW 4.22.015 to include intentional acts or omissions: Oppose, 7-4.
   
3. Presumption of good faith and provision of immunity for employers giving references; rebuttable by clear, cogent and convincing evidence that information given was knowingly false or misleading: Oppose, 7-4.
   
4. Changing the postjudgment interest rate from 12 percent per annum to the treasury bill rate plus two percent: No position, 10-1.
   
5. Cap of $250,000 on noneconomic damages in medical malpractice cases: Oppose, 11-0.
   
6. Constitutional amendment to allow the Legislature to establish a cap on noneconomic damages in all cases: Oppose, 11-0.
7. Imposition of a legislatively prescribed sliding scale for contingent attorney fees: Oppose, 11-0.
   
8. Requiring a 90-day notice of intent to sue for medical malpractice, plus mandatory WSBA action against lawyers who fail to comply: Oppose, 11-0.
   
9. Reducing the medical-malpractice statute of limitations to three years from injury or one year from discovery, whichever is shorter: Oppose, 11-0.
   
10. Changing the medical-malpractice case burden of proof to clear, cogent and convincing evidence: Oppose, 11-0.
    
11. Declaring arbitration clauses in medical contracts reasonable: Oppose 11-0.
    
12. Allowing for periodic payment of future damages if the award is over $50,000, terminable at plaintiff's death: Oppose, 11-0.
    
13. Creating a list of affirmative defenses contractors can use when sued: No position, 10-2.
    
14. Allowing introduction of evidence of failure to wear seatbelts as evidence of negligence: No position, 8-3.
    
15. Allowing for a jury instruction that state agencies and personnel are being reasonable when choosing between two or more possible courses of action: Oppose, 11-0.
    
16. Providing that the state is liable only if proven to have acted in gross negligence: Oppose, 12-0.
    
17. Limiting each side in a case to one independent expert and one standard-of-care expert except for good cause: Oppose, 8-3.
    
18. Establishing a 90-day notice of intent to sue in medical malpractice cases, with an extension of the statute of limitations: Oppose, 8-4.
    
19. Mandatory arbitration for medical-malpractice claims: No position, 8-4.
    
20. Elimination of joint and several liability for hospitals where the hospital is found less than 25 percent at fault: Oppose, 9-3.
    
21. Allowing fault in med-mal cases to be attributed only to parties and anyone released by the claimant (elimination of the empty-chair defense/requiring any such party be brought into the suit): No position, 7-3 (to oppose); 2 (to support).
    
22. Elimination of "apparent authority" for health-care providers (reversal of Adamski vs. Tacoma General Hospital [1978]): Oppose, 11-0.
    
23. Hold hospitals harmless for health-care provider actions unless the provider is an agent or employee of the hospital: Oppose, 8-3.
    
24. Reimpose the eight-year statute of repose (DeYoung vs. Providence Medical Center, RCW 4.16.350): No position, 6-4 (to oppose); 1 (to support).
    
25. Elimination of the collateral source rule: Oppose, 11-0.

And with that, we all went home.             

Note for readers: The Board's Work is not the official minutes of the BOG's meetings and actions. I report on what I found interesting or important. The WSBA executive director keeps the official minutes.

Note, also, that meetings of the BOG are open to members. You can speak up and everything. So few members ever take the BOG up on it that when they do show up with opinions on things, the influence they can have can be remarkable. Give it a try.