April 2006

Letters to the Editor

Bar News welcomes letters from readers. We do not run letters that have been printed in, or are pending before, other legal publications whose readership overlaps ours. Letters should be no more than 250 words in length, and e-mailed to letterstotheeditor@wsba.org or mailed to WSBA, Attn: Letters to the Editor, 2101 Fourth Ave., Ste. 400, Seattle, WA 98121-2330. We reserve the right to edit letters. Bar News does not print anonymous letters, or more than one submission per month from the same contributor.

Things might be different if the shoe were on the other foot

All that is really needed for lawyers to understand the need for tort reform is for a few predatory law firms to start actively suing lawyers for malpractice. Blaring and ubiquitous TV ads would ask "Have you lost a lawsuit? Been convicted of a crime you think you didn't commit? We may be able to collect money for you. Call 1-800-suethebastards today." Putative plaintiffs would shove handfuls of cash at the camera and claim "my lawyer screwed up my case, and I sued him and won $850,000." "My lawyer missed a court deadline and I got $65,000." And so on.

Suits would be filed over every little mistake that could possibly have led to a bad outcome. "Mr. Lawyer, why didn't you search with sufficient skill to find the 1863 case of Mediocre v. Stupid which, if you had cited it, might have affected the outcome of your case?" "Members of the jury, this lawyer spent only six hours deposing the opposing party. His grossly inadequate discovery efforts failed to elicit the key fact that the opposing party had been punished in kindergarten for pulling a fellow classmate's hair, thus establishing a history of violence which, if properly presented to the jury, could have won the case for his client." Every act of the attorney would be scrutinized. His records would be combed through word by word, looking for any possible error that could be exploited. Lengthy depositions would be taken to challenge every decision made, question every potential act not taken, challenge whether the wording of every interrogatory was sufficiently detailed to allow no avenue of weaseling out, or whether any pleading could have been presented in more powerful language that might have persuaded the Court to rule otherwise than it did. Defensive lawyering would become the necessary standard of care. Depose any possible witness. Might the opposing party's third grade substitute teacher know anything useful? Depose her, or take the risk that the failure to do so will lead to a massive verdict against you.

Prosecutors would not be spared. "Members of the jury, because the prosecution bungled in presenting their case, the man who beat my client to a pulp is walking the streets today, a free man. Every night this poor man you see before you, who suffered such horrendous and traumatic injuries (point to huge photographs of badly beaten client hung all over the courtroom) must try to go to sleep knowing that because of the malpractice of the prosecutor his assailant is out there and may be planning another brutal attack. What is peace of mind worth, members of the jury? What is one night of peace worth to you? What then is a month, a year, a lifetime of such peace worth? How much money can compensate my poor client for a lifetime of fear that he will again be the victim of this brute who, but for the malpractice of the prosecutor, would now be safely locked away in prison?"

The claim that overworked prosecutors could hardly try hundreds of cases a year without making any mistakes will fall on ears as deaf as those which ignore the argument that grossly overburdened emergency room doctors and nurses working under enormous stress cannot expect to practice absolutely perfect medicine every time. No. No mistake will be tolerated, no bad outcome will be accepted if any possible further effort might — not would, but might — have led to a better outcome.

A few years of this, with malpractice insurance rates going through the roof — $100,000, $200,000 or more per lawyer for insurance for the highest risk practices — and lawyers themselves would be at the head of the line clamoring for tort reform.

Sadly, for now it is only a dream. But maybe someday soon . . . .

Christopher Hodgkin, Friday Harbor

Proper language use is part of professionalism

This letter is written in appreciation of the March 2006 Robert Cumbow's article "Not Just for Decørätiøn." I was most gratified to read his statement about diacritical marks: "[T]he fact that we don't use these in English is no excuse for the boorish way in which we, as a society, disregard the proper use of diacritics in foreign terms."

Many Washington residents come from cultures where a name is only properly spelled and pronounced if diacritical marks are used. Our courts and state agencies have all too frequently ignored these marks resulting in the double insult of 1) consistent misspelling of names in official documents despite these marks now being readily available and 2) persistent mispronunciation of their names in addressing and referring to these people.

If it is boorish to disregard the use of diacritics in foreign terms, it is frankly rude to fail to use and acknowledge them in litigants' names. Such behavior tells these people that they should not expect to be treated equally with "real" Americans whose names every judge strives to spell and pronounce correctly.

Hopefully, Mr. Cumbow's article will be read widely and taken to heart.

Ann Pearl Owen, Seattle

More information should be available

The WSBA website has recently posted a searchable set of WSBA "formal" ethics opinions. This is a useful addition to online information pertaining to WSBA lawyer discipline. However, although these opinions provide useful guidance concerning ethics rules, they cast little light upon the inner-workings of the discipline system.

The monthly discipline column in the Bar News is more helpful in this respect, but it also has shortcomings. That column covers only cases wherein the accused lawyer was subjected to discipline, and even then describes only those charges regarding which discipline was imposed. Additional information is available in case files kept at the WSBA office, which are available for public inspection and copying. These files contain statements of charges, briefs, hearing officer opinions, disciplinary board opinions, various orders, stipulations, and other documents. Of particular interest to those involved in the defense of disciplinary matters, either pro se, or otherwise, are examples of successful defense briefs and also board opinions which overturn hearing officer findings. I can't imagine why anyone would attempt to defend a discipline case without first becoming familiar with this material. The defense briefs of attorney Kurt Bulmer, in particular, are outstanding examples of excellent legal research and writing in this field.

To facilitate access to these materials, I used the WSBA public records bylaw to obtain many of these documents, and have scanned them for online access. A link will be available on the www.freecle.com website, beginning in April. Due to limited time for editing, these are not indexed or even organized, but are rather in the form of raw image files, each containing a large block of documents. My hope is that others interested in this field will download the images, parse them into separate files, and index and organize them into a more convenient form. Ideally, the WSBA itself will elect to make this material available in electronic format.

Edward V. Hiskes, Richland