May 2003

Letters to the Editor

No offense too trivial

As a lawyer practicing criminal law in the state of Washington, it has become evident, and alarming, of certain trends in our municipal and district courts. I suppose there are always easy solutions, in that we can tell people not to break the law, just like our government decided to tell people not to have sex without marriage. Practically, that does not solve very many problems. The problem that I see, which is increasing on basically a daily basis, is the policy of municipal and district courts to continue to give exorbitant fines for minor criminal acts. I have clients that are on Social Security disability, or are extremely poor, who have violated the law, and they are fined thousands of dollars. Even the fines are not completely unrealistic, but when the court demands minimum payments of $50 to $100, there is no possibility of payment. Of course, one of the solutions is to build more jails.
 
This is a growing problem that will cause further difficulties in our society. Failure of people to even complain of the situation also becomes a travesty. I will continue to attempt to complain, but I am pessimistic that anyone listens.

John L. Farra
Ocean Shores

Doctors are smarter than lawyers, and work harder, too

I am an attorney and member of the Washington State Bar who recently read, and am sending to you my thoughts in reference to, an article in the Washington State Bar News by Dick Manning, the Washington State Bar Association president (presumably also a trial attorney), wherein he expresses his views on tort reform. As a trial attorney, and as one might expect,  Mr. Manning bemoans the current "attack" against trial attorneys. One of the self-serving comments he made was the alleged inequity of "capping" attorneys' fees as compared to other professional fees (accountants, engineers, architects, etc.) that are not legally "capped." I am also responding to a recent article in the Seattle Post-Intelligencer dated Monday, March 10, 2003, on the topic of medical malpractice. I am enclosing an article from the Puget Sound Business Journal that discusses the fact that another medical malpractice insurer has been placed in receivership.

In response to Mr. Manning's comment re "capping" legal fees, let's be real — no one can collect the types of fees trial attorneys collect — Mr. Manning is not comparing apples and apples — we are talking huge sums of money — most other professionals (including medical malpractice defense attorneys) charge by the hour — an architect can't make millions on a jury award — look at the tobacco cases — movie stars and professional sports team members are some of the lucky few that make more than good trial attorneys. Furthermore, physician fees are effectively "capped" — physicians can collect only what insurance companies are willing and able to pay. Capping malpractice awards and reining in lawsuits will yield a positive result. I doubt that trial attorneys are in any way sympathetic to the plight of the obstetrician who faces dwindling reimbursements and higher premiums and phenomenal stress. I personally know of personal injury attorneys who were able to retire early (very early) as a result of very significant medical malpractice judgments rendered in their favor. In a capitalistic society, how can we expect that insurance companies will obtain the best attorneys when the defense attorneys are only paid by the hour and plaintiffs' attorneys can earn huge awards? And, again, for Dick Manning to suggest that trial attorneys are being unfairly treated if they cannot collect huge percentage awards is comical — it is common knowledge that successful trial attorneys "make an absolute killing." Again, Mr. Manning should also know that physician salaries are very severely capped. The fact is, obstetricians are burning out and it will probably take longer and longer to make an appointment with a good one.

My spouse is a Harvard-educated OB/GYN (four years medical school, three years arduous residency, two years fellowship, $150K owed on student loans when done at age 35, without a penny to her name) and she is under severe economic and professional stress due to the excessively litigious nature of matters today, combined with ever-increasing malpractice premiums and decreasing reimbursements. She is a very objective, educated, technically bright, very hard-working and highly respected physician and she is more often than not appalled at the suits that are filed and the payments that are being made. If a handicapped baby and human being is at issue, human compassion, the "all doctors and insurance companies are rich" mentality, and bulldog lawyers and legal theatrics too often cause the money to liberally flow to the attorney and the patient, irrespective of the existence of negligence. My spouse and I have seriously started to plan for my spouse's early retirement from obstetrics, and she will be missed, as she is an excellent and very popular physician.

The economics of practicing obstetrics in consideration of ever-increasing malpractice premiums and ever-decreasing reimbursements, combined with the ever-increasing mental and physical stress caused by fear of significant liability exposure, causes early burnout. Because of the deteriorating economics, obstetricians are finding it necessary to deliver more babies, which only causes more stress, thus the early burnout. You can rest assured that more Cesarean sections are being performed and many, many more expensive medical tests and procedures are being run for fear of lawsuits — if the outcome is anything but positive, irrespective of negligence — look out! Have you looked at the statistics in California and other states since tort reform was introduced? Lower malpractice premiums.

I think we should let the lawyers take over the hospitals and take care of the patients and see what happens. Most successful litigation attorneys (four-year liberal arts degrees, mostly, followed by three years' law school as compared to years and years of arduous training required to be an MD) make much more $$ than the hard-working, educated, stressed-out MDs who are being sued left and right. This is not to say no mistakes are being made by MDs (we all make mistakes — that is why insurance exists) for which the victims should be compensated, but matters have gotten a bit out of control. Unless something is done, the whole system may soon collapse and we can all line up for our medical service Canada-style (except the trial attorneys who will have enough $$ to pay out of pocket). I trust most trial attorneys supported Clinton's "Patient (attorney) Bill of Rights." I certainly would not want either of my sons to become physicians in today's environment — really sad when you think about it.

As was aptly pointed out in the Seattle Post-Intelligencer, the Republicans and the Democrats are squabbling to protect their respective revenue sources, but they are missing the forest for the trees — we need reform in the medical malpractice arena before the high-risk specialists are driven out of business and the patient-physician relationship deteriorates further. Let the trial attorneys continue to earn their huge percentages on tobacco, etc., but let's try and find a solution to the medical malpractice crisis before matters deteriorate further. I would recommend panels of disinterested third-party medical experts that are paid healthy salaries who can determine the existence or nonexistence of negligence, and appropriate and fair restitution. This may bring a better result than the involvement of attorneys who siphon off huge sums of money to cover their huge percentage of recoveries and fees, and who engage in legal theatrics and feed on the human compassion of lay juries who are unknowledgeable as to the intricacies of obstetrics or other high-risk specialties. If we take away the huge payments to lawyers, there would be considerably more money to pay patients who do suffer damage.

Lawrence J. Graham
Bellevue

WSBA Executive Director Jan Michels responds:

Thank you for your comments and personal story. I appreciate that you took the time to write. WSBA studies do not show that medical premiums go down when tort caps are implemented. We believe that insurance-industry economics dictate premiums, and that the higher premiums we see now for physicians are also true for home, car, lawyer liability and business insurance. The huge awards are as rare as bad physicians, but they are sensational, and news of them is highly exploited. 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.

Manning hits the nail on the head

Thank you, Dick Manning. I, for one, thoroughly enjoyed and appreciated our WSBA president's article in the March Bar News. "Tort reform" is nothing less than an all-out assault on the Seventh Amendment (trial by jury) by the "Liability Reform Coalition." The coalition, driven by the insurance industry, has one objective — cut costs and increase profits at the expense of the victims of tortious misconduct. The coalition whines incessantly about "runaway juries" while concealing the fact that invariably it is the insurance defense attorney who files a jury demand. The Liability Reform Coalition is on a deliberate campaign of disinformation through the media and in the legislatures and Congress. But as always, if you want to know the truth, just "follow the money."
I applaud our state Bar Association president for taking a stand on this important issue as the leader of Washington's organization of lawyers — all lawyers. I would suggest the Bar Association print Mr. Manning's article in pamphlet form and distribute it to every Washington state legislator and member of Congress. I think it is the most succinct treatise on the issue of "tort reform" I have ever read.

Thank you again, Mr. Manning.

Brian L. McCoy
Puyallup

Grammar mavens, unite!

Thank you very much for the article by Robert C. Cumbow, "Top 10 Writing Errors for Law Students (and Lawyers)..." (March Bar News, p. 21). Does he belong to the Apostrophe Club that I have heard about? Please ask him to write a paragraph on the proper use of "affect" and "effect," as that is one of my pet peeves. His article is going to be mandatory reading for everyone in my office.

Cynthia Whitaker
Seattle

I enjoyed Robert C. Cumbow's article in the March issue on the top 10 writing errors. May I be so bold as to add two more? Affect and effect, as in: that testimony really affected me vs. that testimony really had an effect on me. But I think my all-time favorite is disperse (to break up or scatter) used in place of disburse (to pay out). I certainly want to be present the next time an attorney decides to "disperse" that $50,000 in excess trustee funds.

Carole Allen
Bailiff to Judge Deborah Fleck
King County Superior Court
Seattle

As a smug English major, I was surprised that I was actually guilty of Mr. Cumbow's first admonition — use of an apostrophe after a singular noun ending in "s" without adding another "s." Thank you for setting me straight.

While I doubt I'll remember all of them, here are a few tips I've learned along the way, with a nod to William Safire's "The Fumblerules of Grammar":
• Never use a big word when a diminutive one will do.
• Avoid colloquial stuff.
• No phrases.
• Be sure to proofread to make sure you don't any words out.
• Use the apostrophe in it's proper place and not in its improper place.
• Avoid mispelling errors.
• Never use a foreign term if there's an adequate English quid pro quo.
• If you must use a foreign word, it is de rigueur to use it correctly.
• It behooves the writer to avoid archaic expressions.
• Don't use no double negatives.
• You must remember to never split infinitives.
• Avoid "superfluous" use of "quotation marks."

Greg Samuels
Vancouver, BC

Hoping that law students and lawyers can handle more than 10 writing errors to correct in a year (Bar News, March 2003), I would add the use of commas in a string. The title of another article in Bar News provides an illustration. "Gertrude, Mr. Stevens and I Plan Some Picaresque Adventures" can be read as an announcement to Gertrude that Lindsay Thompson is planning some picaresque adventures with Mr. Stevens. The sentence needs a second comma after "Mr. Stevens."

Jay McCain
McClellan, CA

I thoroughly enjoyed Robert Cumbow's article about lawyers' top 10 writing errors. As a former newspaper and wire-service writer and editor, I often despair at lawyers' misuse of language and lack of knowledge, or carelessness about simple grammar. I once offended a county commissioner and attorney who misunderstood my use of "loath" as an adjective, and I felt embarrassed to have to explain to him the difference between "loath" and "loathe."   
 
Among other things, your article reminded me about correct use of "begging the question" and the difference between "lead" and "led." In your next wonderful article, I hope you'll include discussions of "impact" and other nouns used as verbs, such as "loan" when the writer means "lend." You and the former Miss Grammar, who earned doctoral degrees in English and German literature, who previously wrote an enlightening and charming but reproachful monthly column about grammar and legal writing for the Oregon Bar Bulletin, and who, until retirement, worked as a writing consultant for the Miller Nash firm in Portland, have much in common. Thank you for caring enough to teach people how to write well.

Melinda Eden
Milton-Freewater, Oregon

Thank you for the great article by Robert Cumbow. I pay now for the times I played hooky during English, and for my past lackadaisical attitude toward proper usage. I enjoy and benefit from this type of article. However, I completely disagree with Mr. Cumbow's outdated, paternalistic, and chauvinistic (wrong) assertion that male gender language is somehow gender neutral. Odd, but it seems to me that it is frequently a male who holds such an outdated precept.

There are numerous reasons not to respect such a (wrong) position: Even assuming that male usage is gender neutral (it is not; never was), such status achieved its current "neutral" usage from past and current gender discrimination. Lots of it. To "respect" such paternalistic status by continued usage is a demeaning gender slap in the face to all.

Mr. Cumbow, if you truly believe the male to be gender neutral, then I suggest the opposite should also hold: that the feminine is gender neutral as well. And considering the eons of past discrimination by men against women, by right, the feminine usage should now be substituted as a matter of course. So as you feel that male gender usage serves the feminine fairly, perhaps you will embrace allowing the feminine portion of the language equal opportunity at language neutrality. From now on, please always substitute the feminine for male gender: Her for his, she for he. And please, insist that all male fire persons in your acquaintance now refer to themselves as fire-women; all male police persons refer to themselves as policewomen, male chairpersons as chairwomen. It's gender neutral after all. In the meanwhile, please refrain from assuming your paternalistic (wrong), outdated beliefs represent the state of English usage.

Andy Hess
Spokane

Robert Cumbow responds:

The position taken by Mr. Hess — and he is not alone — arises from confusing gender with sex. Nowadays, too many of us (Mr. Hess included) even say "gender" when we mean "sex." The past couple of decades of politically correct academic jargon notwithstanding, "gender" is a property of words only; "sex" is a property of living creatures. Gender in language often has little to do with sex — though this is less apparent in modern English than in Middle and Old English, and the languages English originally came from.

I was ill-advised in using the term "gender-neutral"; obviously, the word "he" is masculine (not "male") in gender, not neutral. That, however, does not mean that its use always indicates a person or creature of the male sex. Until the era of political correctness, it never occurred to anyone that the word "he," used where a subject's sex was indefinite, referred only to male creatures. Indeed, any kid who'd made it to 6th grade knew the opposite, that the proper pronoun to use with an antecedent of indefinite sex was "he," "his" or "him," and that this rule emphatically did not assume that the subject was male, any more than Italians say "il gato" because they think all cats are male, or Germans say "die Katze" because they think all cats are female. The use of a word of masculine gender does not always necessarily signify a creature of male sex.  For the record,  (1) "outdated" and "paternalistic" are not synonyms for "wrong"; (2) "chauvinistic" does not mean what Mr. Hess thinks it means; (3) I try to give feminine pronouns equal time with masculine ones to relate to antecedents of nonspecific sex; and (4) I think "firefighter" is a much better word than "fireman" or "firewoman."

Editor's note:

Reaction to Bob Cumbow's article — both in volume and in enthusiasm — has been nothing short of amazing. We are pleased he has agreed to revisit the water hazards and sand traps of lawyer-speak on a quarterly basis in Bar News.

Readers are invited to submit letters of reasonable length to the editor via e-mail (comm@wsba.org), fax (206-727-8319) or mail. Due date is the 10th of the month for the second issue following — e.g., May 10 for publication in the July issue.

Back to table of contents >>