September 2003
Letters
Split decision in Olympia
You inaccurately have referred to "labor and industries" claims in the June 2003 issue (p. 49). A party appeals an order of the Department of Labor and Industries to the Board of Industrial Insurance Appeals, not the "Board of Labor Appeals." The Board is an independent agency entirely separate from the Department of Labor and Industries.
You also missed the mark as to us Board judges. By statute, we are "industrial appeals judges." Our duties differ from those of administrative law judges. For instance, we must apply the Civil Rules for Superior Court, including the rules of evidence. Please see Chapter 51 RCW.
Bruce E. Ridley
Industrial Appeals Judge
Board of Industrial Insurance Appeals
Olympia
I have been a member of the Bar Association since 1969 and have never written a letter to Bar News . . . until now.
However, I am writing to express my appreciation for the consistent quality of the "Editor's Page." I especially admire your recent references to Wallace Stevens—a personal hero of mine whose photo adorns my office wall. I am unable to estimate the number of times I have had to explain to well-versed co-workers that he was both an insurance executive and, arguably, the greatest American poet of the 20th century. Since most of them have never heard of him, the usual response is a blank stare reflecting a certain element of suspicion that I'm playing a practical joke—inventing a person who supposedly managed surety matters and mentally drafted obscure poetry while walking to his office in Hartford, Connecticut.
Accordingly, thank you for the Stevens citations that have enhanced your column. One of my favorite Stevens poems is "Study of Two Pears." As noted in A Book of Luminous Things by Czeslaw Milosz, Stevens attempts to describe two pears and "enumerates one after another of their chief qualities, making his analysis akin to a Cubist painting. But pears prove to be impossible to describe." Even the great Wallace Stevens was unequal to that challenge.
Again, thank you for each monthly "Official Publication of the Washington State Bar" that continues to be both informative and entertaining. Perhaps it is no coincidence that your April 2003 column mentions both Kim Novak—a fantasy from my boyhood—and "a flying pig." Hanging from the top of my office doorframe is a small wooden toy pig with wings. Wallace Stevens, Kim Novak, and flying pigs—consider my subscription renewed.
Ward J. Rathbone
Industrial Appeals Judge
Board of Industrial Insurance Appeals
Olympia
The editor, not the decision, was wrong
I want to comment on something Lindsay Thompson said in his report on the BOG's adoption of new guidelines for the Judicial Recommendation Board in the June 2003 "Board's Work" (p. 38): "The judicial recommendation problem is that sometimes with the best of intentions the committee that rates people for judicial appointments to superior and appellate courts gets the ratings, well, wrong." Like any human institution, the Judicial Recommendation Board occasionally makes a mistake; but it did not come up with a "wrong" rating in the case that triggered the BOG's recent revision of committee procedural rules.
As a member of this committee in 1999-2002, I can speak knowledgeably about it; confidentiality rules preclude a detailed discussion of any particular case, however.
The committee's task is to identify persons who are "well qualified" for gubernatorial appointment to the Washington appellate courts (but not, as Lindsay said, to superior court). The BOG appoints all members of the committee, including one of its own as liaison. In 2001-02, the committee had 26 members, of whom five were non-Caucasian and five were women, including the chair.
Committee guidelines require a candidate seeking the "well qualified" rating to exhibit these qualities: integrity, courage, good character, common sense, respect for the judicial process, fairness and open-mindedness, a commitment to equal justice, excellent legal ability, relevant experience, wisdom, intellect, impartiality, judicial temperament, etc. To earn this rating, a candidate must receive two-thirds of the votes cast at the committee's rating session. The committee does not issue any other rating.
In the case that recently attracted BOG attention, the committee had before it an aspirant who was in many ways typical: intelligent, personable, politically well connected, and a successful litigator. He had submitted a detailed, written application using a standard form. Then, as usual, the committee dug deeper. Committee members called more than two-dozen persons, nearly all of them lawyers and judges named by the candidate, who were familiar with the candidate and his legal work. Then the committee met to discuss the information gathered and to interview the candidate. The candidate made the customary opening statement and responded to numerous questions, some of them prompted by the telephone contacts. Then the applicant was excused so the committee could deliberate and vote.
Thus, the committee proceeded as usual. Lawyers familiar with local bar association committees that rate candidates for superior and district courts would recognize the process.
The deliberation in this case was thorough and spirited. Confidentiality precludes further description. It hardly needs saying, however, that the candidate did not receive enough votes to be rated "well qualified" because a number of committee members were not persuaded that he had all the qualities essential to the rating. In other words, the committee did its job. (Lindsay reported that the BOG wants the committee to start recording the reasons behind its votes, which won't be easy because each voter has different reasons, and some don't voice their reasons.)
Dissatisfied with the outcome, the candidate's supporters took his case to the BOG. Notwithstanding that the BOG could not possibly have reviewed all the pertinent information that the committee considered, much of it confidential, the BOG apparently concluded that the committee had erred.
This led the BOG to adopt new guidelines.
The BOG of course has authority to prescribe new rules for the Judicial Recommendation Board and should do so when warranted. What I object to is the notion that a "wrong" rating necessitated the recent revision of committee rules.
Mark H. Adams
Gig Harbor
Who has more rights? Minors or pets?
Having read the letters in the last few issues of Bar News, I'm rather surprised and disappointed at the disparagement of Adam Karp's piece on animal law (February, p. 16), particularly those that poked fun at those who work for the well-being and protection of animals. It's easy to lose sight of the fact that it was the work of animal-rights folks that brought about our first child-protection laws in the 19th century. If I may cite Stephen Zawistowski, Ph.D., ASPCA senior vice president, operations/science advisor:
The Legacy of Mary Ellen
"I have now the black and blue marks on my head which were made by Mamma, and also a cut on the left side of my forehead which was made by a pair of scissors." Bruised and beaten, clad in the only ragged garment she was allowed to wear, 10-year-old Mary Ellen's tiny voice stunned the courtroom and, in the words of Jacob Riis, "roused the conscience of a world."
In the spring of 1874, just eight years after founding the ASPCA, Henry Bergh was approached by Etta Angell Wheeler with an urgent and unusual request. Wheeler, a social worker in the tenements of New York City, had been stymied in every effort to assist a young girl beaten and sorely abused by her foster parents. Finally, Wheeler's niece suggested meeting with Bergh, well known for intervening on behalf of abused animals. When Wheeler presented the evidence to him, Bergh responded by contacting his attorney, Elbridge Gerry, with the admonition, "No time is to be lost." Gerry's ingenious use of habeas corpus resulted in a warrant, which Bergh used to remove the child from the home and bring the case before the court. Bergh himself testified at the trial. Despite his own disclaimer during testimony, a myth arose that Bergh and the ASPCA had interceded on behalf of Mary Ellen because, if nothing else, she deserved the same protection as an animal. Bergh had in fact acted as a humane citizen in this case and not in his official capacity as President of the ASPCA. Regardless, his notoriety for advancing causes of a humane nature attracted substantial public attention to the case.
Mary Ellen was removed from her pitiful condition and eventually came to live with Etta Wheeler's sister in upstate New York. Gerry and Bergh would establish the Society for the Prevention of Cruelty to Children in 1874.
While I hesitate to suggest that those who work to protect animals from neglect and abuse have a greater degree of sensitivity to suffering, it's worth noting that Ms. Wheeler had already tried every other source of assistance without success before seeking Mr. Bergh's aid. It took an animal-rights activist of that time to get us past the notion that children were chattel, to be used or abused as their custodians saw fit.
Lyle A. Rooff, Paralegal
Walla Walla
More on tort reform
I have read Lawrence Graham's first letter (Bar News, May 2003, p. 7) with its peculiar and inaccurate perception of medical negligence lawyers, and just read his second (Bar News, July 2003, p. 9). Mr. Graham obviously lives on a different planet than I do. My two partners and I handle only medical-negligence cases, and I have been involved in such cases for more than 25 years. His account of an insurance company paying money on a case where "any and all physicians who studied the case [determined] that there was absolutely no negligence" is an astounding story and, if true, should make it into the next edition of Ripley's.
In my experience over many years, no malpractice insurance company will pay money on a claim unless and until the plaintiff has convincing testimony from experts who are reputable and credible. Why in the world would an insurance company pay lots of money if no physician found negligence? Leaving aside the fact that summary judgment would be forthcoming in that situation, insurance companies know that juries are very dubious about medical negligence claims. This is shown by the fact that over the past 10 years in Washington only 10-15 percent of trials have resulted in plaintiffs' verdicts, and in 2002 there was apparently only one plaintiff's verdict in the entire state (for approximately $45,000).
The reality is that these cases are very difficult, risky, and expensive to handle. My office receives five to 10 calls a day regarding potential medical-negligence cases, and we end up taking only one out of 50-100 potential cases. Many of the cases which we spend a lot of time and money evaluating involve death or horrendous injuries, and we still turn them down if we cannot produce credible expert testimony supporting both negligence and causation.
Mr. Graham is a victim, along with many members of the public, of the malpractice insurers' propaganda that says juries throw money at injured people because they feel sorry for them, whether or not there is any negligence. That's baloney, as both plaintiff and defense attorneys practicing in the field will tell you. In fact, in my experience the most serious injury cases are met with more reluctance by a jury to rule for the plaintiff. If you are asking for a great deal of money, the jurors tend to hold the plaintiff to a very high standard of proof.
There is much room for debate about medical-malpractice lawsuits and their impact on the medical profession and the public, but the debates should be based on reality and facts, not the kind of fantasy shown in Mr. Graham's letters and reflected in the many inaccurate and false statements made by malpractice insurers in support of restrictive legislation.
Eugene M. Moen
Seattle
I am responding to an editorial in the March Bar News (p. 13) by Dick Manning, the president of the state bar, criticizing legislative proposals designed to improve the position of defendants in tort and medical-malpractice cases.
Mr. Manning opposes a cap on damages. We should put an end to general damages in toto. The public pays general damages, even though usually an insurance company pays the award. The insurance company gets the money from somewhere, and that somewhere is the ratepayer, the public. Those who don't buy insurance still pay for insurance for the merchant who brings goods by motor vehicle. Insurance companies invest money, always with the intention of investing in something that people will use. Some money paid on claims is taken from these investments. This is the public too. The public gets jobs from money invested by insurance companies, and the public gets products, buildings, factories, cars, whatever, from money invested by insurance companies. The more money taken from insurance companies, the more taken from investments. Self-insured business is no different; money that a software company gives to a contingent-fee lawyer is money that could be spent on employee salaries or on inventing products, or even on consumer goods that also provide jobs for someone.
One could argue that it is good for the public to pay general damages for pain and suffering. But in most cases pain cannot be undone; if a limb is lost, no amount of general damage money will bring it back. Money does not alleviate pain. If someone came to my door to collect $100 for a neighbor's personal-injury claim for pain caused by a negligent driver, I would say no. Most people would. We pay for insurance not to help others but to protect ourselves from financial ruin. There is nothing intrinsically wrong in agreeing to be taxed for general damages, except that general damages inevitably escalate because personal-injury lawyers inevitably think of new ways to get court approval of new causes of action, but there is also nothing intrinsically good about being taxed for general damages. Usually general damages have little economic impact; if they do, they are special damages [out of pocket damages], which are different.
Mr. Manning argues that med-mal damages don't cost much, and that the insurance companies should invest better. Whatever the companies pay in awards and settlements is a cost to the company, as the cost of paper is a cost of running a newspaper, regardless of whether the newspaper invests as well. The more insurers pay, the more they have to charge to cover their expenses. Mr. Manning argues that premiums continued to rise after caps were imposed in California. This means nothing. We have no idea whether other factors caused the alleged rise in premiums, nor do we know if premiums would have risen even more had caps not been in place. Mr. Manning criticizes the insurance companies for cutting their rates. He does not acknowledge that markets are competitive and the companies have to compete by price and product, and cannot determine with certainty any more than the rest of us what the economy will do. His proposal to control insurance rates would merely drive insurers out of town.
Mr. Manning cites statistics to show that malpractice actions are not expensive. The statistics do not include settlements (except those over $1 million) or defense costs. We don't know how big the awards over one million were, but we do know that one large verdict or settlement is likely to bring in its wake more large settlements. It would be more meaningful to know how many billions the insurance companies, that is the public, pay in total for awards and settlements. Then it would be helpful to know how much they spend on defense costs and administration, and then, beyond that, it would help to know how much court money courts spend on administering litigation for personal-injury lawyers.
Mr. Manning argues that tort damages offer incentive to "avoid malpractice." Many factors apply, but one answer is that the market system provides an incentive to provide a beneficial product. People do inquire about the quality of doctors. Courts are not a good forum for fashioning rules for doctor behavior because courts see the damages suffered by the plaintiff, not the cost suffered by society for supporting armies of insurance and plaintiff lawyers and not the direct cost to the taxpayer of applying judicial resources to endless contingent claims. Nor are they likely to see indirect costs imposed by judicial regulation of the insurance or medical industry. Courts are lobbied by two sets of lawyers, plaintiff and insurance, and not by anyone who speaks for the public. Legislatures are lobbied by all the parties and are therefore more likely to consider all public-policy issues. A legislature, with all its faults, is better qualified to set social policy than a court.
Mr. Thompson, the editor, wants a more picaresque and lively Bar News. As a government publication, Bar News would be more lively, perhaps more picaresque, if they published both pro and con. This issue contained Mr. Manning's plaintiff-
oriented criticism of the Liability Reform Coalition (which includes Boeing), actually calling the LRC proposals an attempt to dismantle the justice system a piece at a time, but nothing on behalf of the public or LRC or insurance lawyers. We would have a more lively Bar News if pro and con editorials were published side by side.
Roger Ley
Seattle
Editor's response: I appreciate Mr. Ley's suggestion. The president determines the subjects of the president's column. Bar News has no input in the matter. While a one-time, one-page counterpoint undoubtedly has its value, I prefer letting members explore the pros and cons in the Letters section, where more points of view can be heard, and for as long as there is member interest in the subject.
How to fix the law-school-debt crisis and the legal-services crisis at once
The legal profession should be deregulated so that prospective lawyers can sit for the bar exam without having three years of law school. Everyone complains that lawyers are too expensive. If we flooded the market with more lawyers by letting more sit for the bar exam, the price for legal services would come down and access to lawyers would go up.
Everyone complains about the high cost of lawyers. More attorneys via opening up law schools and bar exams is the solution. Requiring three years of law school only acts as what economists call a "barrier to entry." Such barriers artificially restrict the number of lawyers who enter the labor pool, thus making legal advice more costly. This is just the law of supply and demand in the legal labor market.
Law school students nowadays graduate with huge debts because of their student loans. With an $85,000 average debt, the young lawyer can't go into public-interest work or work in the nonprofit sector because she can only take the high-paying jobs with big firms.
Requiring students to do three years of law school (and four years of college before that) at government-accredited schools is supposed to ensure high standards and skilled and educated lawyers for the benefit of legal consumers. But in reality, it only restricts entry into the field hurting consumers.
I suppose as a lawyer myself, I shouldn't be arguing to open up the legal profession. After all, it'll mean more competition for me and maybe lower my earnings or even make me unemployed. I suppose all of us as "producers"—or what we do for a living—would love a monopoly in our field. I'd love to be the only lawyer, then I could bill at super high rates.
But all of us as "consumers"—or people who buy or need stuff—want competition and open labor entry in every field and for every good and service because it will lower the prices we pay when we buy it, thus raising our standard of living by freeing up money for other things.
Granted, Washington state is legally fairly progressive in that it and about seven other states still allow apprenticeship students to sit for the bar exam. Apprenticeship is where, instead of law school, on-the-job learning and academic study are combined under a mentor attorney, monitored by the state. Tests are required, but classroom attendance isn't. And four states (California, Massachusetts, Tennessee, and Alabama) allow graduates of nonaccredited law schools to sit for the bar exam. Washington should join these states.
Washington is also progressive because in 1999, "reciprocity" with Oregon and Idaho was legalized. This means that lawyers in the three states, Washington, Oregon, and Idaho, can practice in all three without retaking each state's bar exam. This ended local protectionism.
Until about 1921, in nearly every state, there were three routes to becoming a lawyer. One could do self-study like Abe Lincoln did, or apprenticeship like famous lawyer Clarence Darrow (of Scopes Monkey trial fame) did. The third path was a one- or two-year law school.
But this all changed in 1921 when the American Bar Association (ABA) sought to "professionalize" legal education. With the excuse that consumers benefit from higher standards, the ABA got states to require three years of law school. The ABA also got unauthorized practice of law criminal statutes passed. The ABA was like a guild trying to limit competition by raising the cost of becoming a lawyer and therefore confining the profession to the upper class.
Law school, and the bar exam itself, don't really establish high, professional standards more than they make becoming a lawyer expensive and restrict the labor pool. Both Abe Lincoln and Clarence Darrow would be criminals if they practiced law today with the educations they had.
Other law school requirements today also raise the cost of law school and, thus, restrict entry into the labor market. For-profit law schools are not allowed. One- or two-year schools and self-study are not allowed. Except for eight states, apprenticeship is not allowed. Except for four states, non–state-accredited schools aren't allowed. Reciprocity is rare.
Law school is good, it teaches you to read a case and be able to argue either side of an issue and gives you the philosophical underpinnings of the law. But it shouldn't be the only method. And the law is so complicated that much of it is learned on the job anyway.
Washington should go beyond just allowing apprenticeship and reciprocity with two states, and allow for-profit or other nonaccredited law schools to spring up and get reciprocity with more states like Alaska. Maybe allow a two-year law school.
Requiring three years from a state-sanctioned school (as well as a four-year college degree) doesn't protect consumers from incompetents and quacks, but protects current lawyers against new competitors. It is an inappropriate restriction and regulation of the labor market in legal services that works to the detriment of consumers, i.e., people who need lawyers. The argument that licensing and required schooling protect consumers and ensure high standards just isn't accurate.
In the real world, deregulating the legal profession would mean that state bar associations would have to stop prosecuting real estate agents and freelance paralegals for unauthorized practice of law.
Licensing, bar exams, requiring expensive schooling, and other regulations are the wrong approach to protecting consumers, whether it is protection from lawyers, doctors, accountants, Realtors, or mechanics. We should let private accreditation and certification along with civil consumer protection and fraud law, as well as general tort, contract, and products liability law, protect consumers and patients in a modern, decentralized civil legal system in a free market, rather than through the same old state-run licensing and schooling schemes that act as barriers to entry.
We already have a consumer protection act in Washington (RCW 19.86), and the law of professional malpractice and negligence as well as informed consent law can adequately protect consumers and patients from so-called "quacks." The free market, in the shadow of civil liability, can protect consumers, plaintiffs, and defendants better than state-run licensing and schooling schemes. Let's open up Washington's law schools and bar exams to more people.
Jeff E. Jared
Kirkland
More on legal services
I have read the second letter of Mr. Roger B. Ley (Bar News, June 2003, p. 13) remonstrating against the provision of legal services to indigent persons who reside in our state. It appears to me that Mr. Ley has a fundamental misunderstanding of the intention and purpose of Columbia Legal Services.
The attorneys who work for our nonprofit corporation seek to ensure that persons who have no means to hire an attorney can obtain the rights and benefits established by the legislative branch of government and the Constitution of our state and our country. When litigation occurs, it does so because a person has a valid claim that has a legal basis authorized by the Legislature, Congress by law, or an administrative agency through regulation.
The argument that Mr. Ley offers that lawyers and judges merely substitute their judgments for that of a member of the executive branch displays a fundamental misunderstanding of the elemental purpose of the judiciary and the role that we lawyers play in that branch of government. As advocates we always reach judgments. Whether our respective judgments hold sway depends upon the rulings of the third branch of government, the judiciary.
It appears that Mr. Ley will never acknowledge that a certain portion of our society is unable to assist themselves because of their young age (think little children who don't have a home), or their old age (think how many seniors get bilked by con artists), or their disabilities (think persons who are quadriplegic, or hearing and sight impaired), or any of the other unintentional circumstances that might prevent a person from enjoying the education and benefits that Mr. Ley has achieved through his hard effort. As long as he will not acknowledge that some in our society need help just to live, he will continue to remonstrate against legal services lawyers, who advocate for those who need that help.
I respect the right of Mr. Ley to continue his campaign. I trust he will respect the fact that others do not agree with his basic assumptions and thus pursue a different means of assisting the unfortunate in our state.
Michael Hanbey
Board President, Christian Legal Society
Seattle
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., September 10 for publication in the November issue.
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