July 2003

Letters to the Editor

Justice shared
I read with great admiration the article on the Garfield County Courthouse (Bar News, May 2003). About 20 years ago, while wandering through the halls of Sharpstein Elementary School here in Walla Walla, I came across a mural of the Walla Walla County Courthouse (one of many drawn by students), and the very old picture from which it was drawn—and realized that the Lady Justice atop the Garfield County Courthouse had come from Walla Walla (she was in the photo). I did some limited (and not terribly professional) research here and in Garfield County, and discovered that after a fire here in Walla Walla, she was transported there. The purpose in pointing this out is not to make any claim upon her for our county, but rather to let the world know that "back east" we believe in brotherhood and sisterhood, and waving our flags, and sharing our lovely lady with our neighbors.

John P. Junke Sr.
Walla Walla

You have the right to be eaten, and made into coats as well
I was shocked and surprised to read the several letters to the editor concerning the article on "Animal Rights." The part that surprised me is that the letters were sent at all. I simply assumed that Mr. Karp's article was an early April Fools' joke. I thought that in the April edition of Bar News, a notice would be placed stating that the article was an early April Fools' joke. Apparently, this was not an April Fools' joke, but rather a complete and utter waste of space in your otherwise excellent magazine. I would like to write more, but I am off to lunch—I am going to have a big, juicy steak in Mr. Karp's honor.

Jeffrey D. Eberhard
Portland

I respond somewhat belatedly to the letters to the editor (Bar News, April 2003) regarding Adam Karp's piece in the February Bar News on animal law. One writer said he "boggled in disbelief" when he saw Bar News "was devoted to the false issue of 'animal law.'" Another pointed to the article as an explanation of "why lawyers are the butt of popular jokes."

There is something heart-warming, after all, in seeing the same prejudice manifest itself down through the centuries in the same way, with ridicule.

The first modern legislation to promote animal welfare was introduced in the British Parliament in 1800, when Sir W. Pulteny forwarded a bill to ban bull-baiting (a bull was tethered by a short chain to a post driven into the ground, and was set upon by bulldogs trained to attack it by biting its nose and ultimately killing it; this was sport in England for 700 years). The bill failed.

In 1821, Richard Martin, an Irishman, introduced a bill into the Commons concerning the ill treatment of horses and cattle. "The reaction of the house was to laugh the Bill out of court. One member suggested that asses be included—Martin agreed—laughter ensued—laughter increased when the amendment was read" (C.D. Niven, History of the Humane Movement, 57, 1967). The bill passed, and marked the first legislation of modern times in any country that protected animals against any kind of abuse by humans. More animal-protection legislation was adopted in 1835 at the urging of the English Society for the Prevention of Cruelty to Animals. This legislation gave protection against abuse to all domestic animals, including dogs, and outlawed bear-baiting, badger-baiting, bull-baiting (again), dogfights, and cockfights. The first urban animal shelters were developed in England in 1860; The Times wondered if "the supporters of such an institution have not taken leave of their sober senses . . . . Why not a home for five-pound notes dropped in the streets?" (Niven, at 77). (Bar News's correspondent called the ideas in the article "goofy," but did not quite suggest that Mr. Karp has taken leave of his senses.) I will not trace any modern developments of animal law, except to observe that dogs and cats, at least, are now recognized in many jurisdictions as being members of the family. And animals are not just objects; they are the subjects of a life.

History demonstrates that progress in animal-rights law, and animal law, has been made. But anyone who advocates a positive change in legal doctrine, as Mr. Karp does, beware: you are likely to get laughed at. The taunting laughter that greeted the earliest advocate of animal law reform 200 years ago echoes down through the centuries in good form.

Daniel M. Warner
Bellingham

WSBA exec doesn't speak for me
I was unpleasantly surprised by the response of Jan Michels to the letter of Lawrence Graham (Bar News, May 2003, p. 10).

Since the response was titled "WSBA Executive Director Jan Michels responds," and was published in the "Official Publication of the Washington State Bar," her response certainly bears the trappings of an official bar position.

If what she said is, indeed, an official bar position, I certainly missed the discussion about it or the minutes of the Board of Governors meeting where it was adopted. If it is her personal opinion rather than an official bar position, the comment should not have been titled as it was.

The bar association contains both plaintiff and defense attorneys, and it is Ms. Michels' obligation to represent the interests of both fairly. Her response, however, was very much the "party line" of the plaintiffs' bar. I am not a tort attorney, so I have neither a plaintiff's nor a defendant's bias, but I recognize that the situation is far more complex than Ms. Michels allows, and that there are fair and reasonable points to be made by bar members on both sides of the issue.

When, speaking as the executive director of the Association, Ms. Michels writes, "Lawyers . . . do not feel that capping damage awards is a response that helps the problem," Ms. Michels appears to speak for all lawyers, or at the least for a formally adopted bar position. I am certain that she does not speak for all lawyers (for one, she does not speak for me, since I believe the issue she addresses is still unresolved). If there is a Board of Governors' resolution supporting the position Ms. Michels takes, it would have been preferable simply to quote it. If not, if this is Ms. Michels's personal opinion about what lawyers believe, then I believe that while she is free to hold whatever opinions she wants to, she should not do them under the color of her position as though they were anything more than the personal opinions of a nonlawyer employee of the bar association.

Christopher Hodgkin
Friday Harbor

The May edition of "our" magazine contains the following statement by WSBA Executive Director Jan Michels in response to a letter supporting tort reform: "Lawyers are very sympathetic to the malpractice insurance problems of doctors but do not feel that capping damage awards is a response that helps the problem."

I would be very pleased indeed if Ms. Michels did not presume to assert what my opinion on malpractice reform, or any other issue, is. "Lawyers," Ms. Michels, do not "feel." Individuals do, and many of us feel quite differently on this matter than you assert.

Alec W. Brindle Jr.
Seattle

I read Mr. Graham's thoughtful (and lengthy) letter in May's edition of Bar News. What amazed me, however, was the fact that you printed Jan Michels's rebuttal to Lawrence Graham's assertions as if it was a point/counterpoint article. Many Bar News letters contain partisan opinions, yet I don't recall Ms. Michels (or anyone else) rebutting such positions (factual/technical issues aside). Is it because of the conservative position Mr. Graham takes?  (A cynic might also conclude that this explains the flip title you included for his letter, versus the respectful title you used for the following pro-Manning letter.)

Moreover, I object to Ms. Michels, apparently speaking on behalf of the WSBA, showing partisan support for the tort reform issue. Like many issues, members of the WSBA fall on opposite sides of the tort reform issue. I don't expect the WSBA to take sides. Ms. Michels' response first states that "WSBA studies" support her opinion. What WSBA studies on insurance rates and tort reform is she referring to, and why is the WSBA funding such studies? I'm sure that with all its budget demands, the WSBA does not have extra money to fund such studies (which, I expect, would be expensive to conduct properly). Maybe she is referring to multiple studies she has read, as have I, collectively, with differing and even conflicting conclusions. Still, if this is the case, the question remains: Why does she pick out the ones supporting her position as the "WSBA studies"? Ms. Michels then moves from talking about "WSBA studies" to what "[w]e believe" about the complex issue of factors affecting insurance premium prices, as if "we" (who? the WSBA, her staff?) is an expert on this topic. Finally, she ends with attaching her opinion about how damage caps will not help the medical malpractice problem to all lawyers. I have no issue with Ms. Michels voicing her private opinion, but I do object to her cloaking her opinion as that of the WSBA or all lawyers.

Brian J. Deagle
Redmond

Tort reform: more thoughts from the MD side of the issue
Some further thoughts in response to WSBA President Dick Manning's article on tort reform: My spouse's partner's former insurance carrier decided it would be prudent to pay a substantial settlement to a family for alleged negligence in connection with a shoulder distochia incident that resulted in minor palsy. It was the unanimous determination of any and all physicians who studied the case that there was absolutely no negligence in this particular incident and, in obstetrics, certain outcomes that we all hope to avoid are unavoidable—nonetheless, monies flowed to the family of the child and their attorneys because the insurer wanted to avoid trial and the uncertainties inherent therein.

I say that is wrong and it is "catching up with us." The thing that triggered my first letter (Bar News, May 2003) was the position that Dick Manning took re the inequities inherent in capping attorney fees as compared to other professionals. I do not think the lawyers understand that obstetricians are at a "breaking point"! They cannot cover their costs if the costs continue to escalate and reimbursements continue to decrease.

My spouse earns approximately $1,700 for a complete delivery including pre- and post-partum care—she cannot afford any more increases in her insurance. Physicians are severely capped—much more so than lawyers. The system is an imperfect one at best—remember that O.J. Simpson is out golfing today. I experienced legal training and I have first-hand knowledge of the average trial attorney's day and, trust me, it does not come close to the training, stress and expectations placed on high-risk specialty physicians. You should note that the number of ob/gyns graduating from medical schools is way down, as are the applications for medical school. There is a shortage of health care providers and it may reach crises proportions—you can continue to deny it all and we can continue our "pissing contests," but the fact of the matter is, the MDs will soon be fed up. I am from Minneapolis/St. Paul and there are now four law schools pumping out hundreds of lawyers every year—that is just one metropolitan area—and the prerequisites for acceptance into most of these schools, followed by the passage of the bar, followed by the right to sue people, pales in comparison to the training and skill required to be a physician.

All those attorneys need to make a living like everyone else. Your reference to Republicans is also interesting—how do you know I am a Republican? The fact that the trial attorneys are the third largest contributor to the Democratic Party is, admittedly, interesting, but don't jump to conclusions. It is also a simple fact that no physician or other professional can pull in the $$ the tobacco attorneys, et al, just pulled in. I do agree that additional policing may be required to eliminate incompetent physicians, but it is not that simple.

Lawrence J. Graham
Bellevue

Get a ticket? Pay it.
James Goche (Bar News, April 2003) writes of his parking ticket battles. I don't want to sound like Goody Two Shoes, but in the 63 years that I have been driving, I have never received a parking ticket. And for 31 of those years behind the wheel, I was driving in jam-packed San Francisco, where parking is truly a hassle.

But I am well aware there's another generation out there who look upon beating the parking rules and their enforcement as a sporting proposition and an accepted way of life. A young attorney in our office in San Francisco breezily told me that his parking tickets ran about $400 per month and that he looked upon this as merely a business expense, illegal parking being convenient and averaging out a better bargain than downtown monthly garage fees.

Goche seems to believe that his parking ticket woes are "all someone else's fault." He blames the collection agency, the police department, and the courts, but never admits that his own conduct got him into his troubles.

He set the whole thing in motion by loaning his car to a supposed friend for what must have been a considerable time. In so doing he opened himself up to all kinds of liabilities, but he doesn't even yet seem to accept the consequences of this careless act. How well did he really know the "friend" to whom he so negligently entrusted his vehicle? What kind of a friend was it who enjoyed the use of the car, got a lot of tickets, apparently tore them up, and never told him? You hang out with the wrong crowd, you get in trouble.

Where is Goche's concern for the problems represented by the pile of tickets—the deliveries that couldn't be made, the short-term parkers who could not find spots as the Goche vehicle illegally hogged parking spots long after the meter had run out, the tow-away zones blocked at rush hour, and all the other traffic problems the tickets represent?

Why is Goche so uniquely betrayed by the Postal Service? We use first-class mail for almost everything. Banks, brokers, all kinds of responsible parties use first-class mail in perfect confidence. Stock certificates go by first-class mail. Why does first-class mail repeatedly fail to deliver notice of court dates to Goche when the rest of us are thus served every day? Does he even have a mailing address?

More serious is the needless, egotistical, endless litigation that Goche inflicted on the overburdened court system. Going to court is not a form of recreation. When he learned of the fines, why didn't he admit his responsibility and just send in his check?

Richard L. Meigs
Olympia

Grammatical sensitivities taxed
Now that Bob Cumbow has opened the door to legal writing errors, the perspective should be broadened to use of pet words and phrases—the editor described reaction to Bob's article as "amazing."

Since the Spiderman movie, use of this word has reached epidemic proportions—you cannot read three pages of a newspaper or magazine, watch a half hour of TV, or carry on three conversations, however brief, without use of this word. For attorneys it has supplanted "frankly," also recently popularized, and totally objectionable because it implies the issuer has been less than open, candid, or honest to that point. "Amazing" is more generic and consequently more widespread. It is the equivalent of "like," "you know," "whatever," and other cheap language fillers grating on the nerves of I, for one, of what is probably a very small minority of deviants to whom overuse of popularized words and phrases is like fingernails on a chalkboard. Quite frankly, I'm amazed my exaggerated response has led me to dash off this letter.

Dean K. Knapton
Kalispell, MT

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