A judge’s advice to new lawyers

Texas Judge Randy Wilson wrote a letter to two of his children offering some of his views on the practice of law. The two children have decided to become lawyers. One just passed the bar exam, and the other is in the third year of law school. With their permission, the judge is sharing it with others. We have decided to post it in its entirety here, because it contains a wealth of information worth passing on:

You are both about to become lawyers. It’s a sobering and exhilarating thought. You suddenly will have thrust upon you real problems from real people who are looking to you for help. While you have accomplished much and the future is bright, there is still a great deal to learn.

Law school teaches basic fundamentals and critical thinking, yet you still have much to learn about the tactics and nuances of the practice. The subtleties require a lifetime of study with the assurance they will never be mastered. You face a long yet thrilling road.

I don’t pretend to know all or even most of the answers. Lawyers and judges never stop learning the law and its challenges and complexities. Yet I have learned a few things in my years, mostly through trial and error. Permit me to share a few of them.

• Be proud to be a lawyer.

We are bombarded with lawyer jokes and ridicule. We laugh politely at the jokes, and, I have to confess, I have told a few myself. Don’t do it. For hundreds of years, society considered the law a noble profession, and lawyers have been the stalwarts of defending legal rights. Lawyers desegregated the schools and improved product safety.

Even the most vocal of lawyer bashers are the first to call a lawyer when they feel their rights are being trampled upon. And finally, don’t forget that the most famous lawyer bash — “[t]he first thing we do, let’s kill all the lawyers” — was actually an acknowledgement by Shakespeare in “Henry VI, Part II” that lawyers must be eliminated in order to achieve a revolution. Be proud to be a lawyer.

• Always tell the truth to the client.

If bad things happen, tell the client. Don’t delay. Some of the worst mistakes I have ever made as a lawyer happened when I was afraid to call the client and admit that something wasn’t filed on time. So I delayed. After a few days, it got harder to admit what was going on. After a week or two, it was virtually impossible to make the call, because now I had to explain why I did not call earlier.

Don’t simply try to fix the problem without telling the client and hoping that the problem goes away. Call immediately. He will understand. If you’re upfront and acknowledge immediately that you made a mistake — e.g., you failed to make a disclosure in a timely fashion, but you will file a motion to fix the problem and won’t charge him for any of your time to fix it — he really will understand.

• Always tell the truth to the court.

Admit your weaknesses to the judge. If the other side files a motion for summary judgment to throw out your client’s seven causes of action, tell the judge, “Your honor, I will admit that the DTPA and fraud claims are weak. We probably don’t have sufficient evidence to support some of the elements of those claims. But the other five claims are absolutely good, and here’s why.” You have just earned kudos and instant credibility with the court.

Here’s another example I encountered: A lawyer filed a motion, and the other side did not appear at the hearing. However, the lawyer began the hearing by saying, “Judge, I just got a call from the opposing counsel who said I agreed to pass the hearing. I don’t remember that. But if he said it, I’ll give him the benefit of the doubt, and I don’t feel right proceeding without him. Let’s pass the hearing.” Judges remember that.

• Learn from others.

Over the course of a career, you will encounter hundreds of different lawyers as co-counsel and opponents. Some will be brilliant, and some will make some of the biggest bone-headed mistakes imaginable. But I have found that even the least proficient will do something right or will make an argument I hadn’t predicted. Over a lifetime, you will see a thousand different styles and approaches. Never close the door to learning.

DO UNTO OTHERS

• Follow the golden rule.

There’s just no reason to be a jerk, and there are lots of reasons to be nice. Let me give a few examples.

Opposing counsel: Sure, he’s opposing counsel and your sworn enemy, but there’s no harm in being nice, and there are a lot of potential advantages. Opposing counsel will see you in action and can be a great source of future business. I used to get a lot of my referrals from former opposing counsel.

Does this mean that you should roll over and accede to every request your opponent makes? Of course not. But if he calls and asks for a one-week extension and it doesn’t harm your client, then by all means agree. Remember, there will come a time when you’re in a bind and need a favor.

Office staff: It’s amazing how often lawyers will abuse office staff, throwing fits and tantrums. I was certainly an abuser at times, as well. Don’t do it. These are people, and they deserve respect. Moreover, they can make your life either misery or a pleasure. If they feel they’re part of the team, they will gladly pitch in and work late. If they feel like a second-class citizen, there’s no end to the number of ways they can sabotage you.

Court staff: Lawyers sometimes will vent at the court clerk or complain to the court staff that the clerk somehow has not done his job. Who do you think the clerk is going to go talk to about it? The judge. Who do you think the judge is going to support? The staff. If you’ve truly got an issue, then file a motion, but complaining and yelling at the court staff is a shortcut to a bad result.

• Keep time timely.

For better or worse, lawyers have to keep a time sheet. We all hate it. You will hate it. But I promise you that the worst thing you can do is not record your time throughout the day, every day. I can’t tell you the number of times I’ve tried to reconstruct my day two weeks later in a desperate attempt to create late time sheets.

There are two inevitable results of this. First, it will be fiction. There’s no way you can accurately state your time for yesterday, much less a week or two ago. Second, you will only end up cheating yourself. Every time I lagged behind on time sheets and tried to reconstruct them later, I always shortchanged myself. Just keep your time contemporaneously during the day.

• Learn from mistakes.

You are going to screw up. All lawyers have. You are going to drop a ball, miss a deadline, ask one too many questions, forget an objection, whatever. These are neither trivial nor the end of the world. These are times for self-reflection. Sure, you should resolve not to make the mistake again, but there’s more you can and should do. Figure out why you made the mistake. What was the root cause of the problem? Are you too busy? Are you distracted? Do you need better organizational skills in general? Mistakes are the time to reflect on underlying causes of error.

• Communicate with the client.

This is perhaps the easiest problem to avoid, yet you would not believe how many lawyers get in hot water by failing to return telephone calls. I sat on a grievance committee for four years, and easily half of the complaints could have been avoided by timely communication. Send the client periodic updates on the status of the case. Copy the client on all pleadings and correspondence. What’s the harm? The client will appreciate those efforts.

• Take the long view.

You’re going to be in this game for the long haul. There’s no shortcut that’s worth it — never. If you have a bad document, produce it. If your client is lying to make his case, fire him. Compromising your conscience just is not worth it. There will be other cases. It’s a cliché, but it’s true: A legal career is a marathon, not a race.

• Keep a diary.

How I wish I had kept a diary. You will encounter a lifetime of war stories. You won’t remember them, I promise. Write them down.

• Finally, have fun.

Being a lawyer really is the best job imaginable — unless, of course, it’s being a trial judge.

CPSC recalls 2.1M Stork Craft cribs after deaths

The U.S. Consumer Product Safety Commission (CPSC), in cooperation with Stork Craft Manufacturing Inc., of British Columbia, Canada, today announced the voluntary recall of more than 2.1 million Stork Craft drop-side cribs, including about 147,000 Stork Craft drop-side cribs with the Fisher-Price logo. The recall involves approximately 1,213,000 units distributed in the United States and 968,000 units distributed in Canada.

The cribs’ drop-side plastic hardware can break, deform, or parts can become missing. In addition, the drop-side can be installed upside-down, which can result in broken or disengaged plastic parts. All of these problems can cause the drop-side to detach in one or more corners. When the drop-side detaches, it creates space between the drop-side and the crib mattress. The bodies of infants and toddlers can become entrapped in the space which can lead to suffocation. Complete detachment of drop-sides can lead to falls from the crib.

CPSC, Health Canada, and Stork Craft are aware of 110 incidents of drop-side detachment; 67 incidents occurred in the United States and 43 in Canada. The incidents include 15 entrapments; 12 in the U.S. and three in Canada. Four of the entrapments resulted in suffocation: a 7-month-old in Gouverneur, N.Y.; a 7-month-old in New Iberia, La.; a 6-month-old in Summersville, W.Va.; and a 9-month-old in Bronx, N.Y. Included in these incidents are 20 falls from cribs; 12 in the U.S. and eight in Canada. Fall injuries ranged from concussion to bumps and bruises. The cribs involved in these incidents had plastic drop-side hardware that had broken, missing, or deformed claws, connectors, tracks, or flexible tab stops; loose or missing metal spring clips; stripped screws; and/or drop-sides installed upside-down.

For additional information, contact Stork Craft toll-free at (877) 274-0277 anytime to order the free repair kit, or log on to www.storkcraft.com. You can also find more information on Crib Safety at CPSC’s Crib Information Center. For some additional news reports, see the following:

• The New York Times reports, “Citing cases of infants being trapped and suffocated, the Consumer Product Safety Commission announced a voluntary recall of more than 2.1 million Stork Craft drop-side cribs on Monday, the largest recall ever of cribs.” The agency “said the danger could result from improper installation of the drop side, or from the plastic hardware of the drop side breaking, potentially causing one of the corners to detach. Babies can then get stuck in the space between the side and the mattress.”
• The Los Angeles Times reported, “The recall includes more than 1.2 million cribs sold in the United States and 968,000 cribs sold in Canada, the commission said in a recall statement. About 147,000 of the recalled drop-side cribs were branded with the Fisher-Price logo.”
• CNNMoney.com reported, “Safety advocates have urged federal regulators to impose tougher standards on companies that make drop-side cribs and some have called for an outright ban.”

AAJ report debunks med mal myths

The American Association of Justice (AAJ) released a new report entitled, “Five Myths about Medical Negligence” that debunks the myths about medical malpractice reform including:

• there are too many frivolous suits;
  
• medical malpractice lawsuits drive up healthcare costs;
  
• doctors are fleeing because of medical malpractice lawsuits;
  
• medical malpractice claims drive up premiums; and
  
• tort reform will lower insurance rates.
  

Calls for tort reform in the context of health care reform are an unwelcome distraction. As we have noted in several posts on this topic, in this debate, no one is speaking about the victims. This continuing effort to blame lawsuits for spiraling health costs is puzzling and unwarranted. The focus should shift to efforts on curbing negligent treatment of patients. Indeed, wouldn’t safer practices eliminate lawsuits and lower premiums?

You can view AAJ President Anthony Tarricone’s article on the report by clicking here. You can link directly to the report by clicking here.

Doctor rejects notion of limiting lawsuits

“The doctors’ lobby says capping malpractice suits will make healthcare cheaper. I’m an M.D. and I don’t believe it.” Those are the words of Dr. Rahul K. Parikh, a doctor who believes, like most of us, that lawsuits are not the reason we have a healthcare crisis in this country.

In an op-ed at Salon.com, Dr. Parikh wrote, “Proponents of reform say that defensive medicine, frivolous lawsuits and high premiums are behind the surge in healthcare expenses.” But “there’s nothing ’sure or quick’ about changing medical liability laws that will improve healthcare or its costs. Defensive medicine adds very little to healthcare’s price tag, and rising malpractice premiums have had very little impact on access to care.” Parikh discusses several studies on the subject, concluding, “Instead of a swamp of frivolous lawsuits, what the data shows is a system that functions.” He argues, “Tort reformers neglect the fact that malpractice reform won’t save one extra life. To make that difference, insurers, doctors and their lobbyists like the AMA need to find ways to improve patient safety.”

You can read the full text of the article by clicking here.

Dead by Mistake site focuses on medical errors

“Every year approximately 200,000 Americans die from preventable medical errors and healthcare-associated infections as tools to fight these needless deaths go unused at many hospitals.”

That’s from an online report by a team of Hearst journalists called Dead by Mistake which focuses on the plague of fatal but preventable hospital errors. These journalists recognized that part of the problem “in seeking some solution to the unrelenting number of preventable deaths each year was that there was no comprehensive reporting of medical errors around the country.” With Dead by Mistake, they set out to change that by gathering information and presenting it in newsprint and online.

The site contains a number of resources, including stories from the families of victims, strategies for obtaining safe health care, and ways to demand change in the healthcare delivery system. In one recent story from the site, the Heart journalists noted that the proposed medical malpractice reforms “would only save 0.5% of all health care costs, and leave injured patients with practically no legal recourse. But reducing medical errors means healthier patients and lower costs.” You can read the full article by clicking here.

In another analysis presented on the site, they noted that Congress may be wrangling over measures to extend health insurance to more Americans and lower the costs of medical care, but few lawmakers are concerned with making our health care system safer for patients. Indeed, the three health care reform bills under consideration by Congress do not include key solutions long ago envisioned in “To Err Is Human” and lobbied against by the health care industry ever since. You can read more on that by clicking here.

You can see the full Dead by Mistake report by clicking here.

Will the discussion ever focus on victims of malpractice?

The healthcare debate in this country has shifted the focus on the costs of medical malpractice and the contribution to the current “crisis.” On one side, there is argument and statistics which persuasively establish that medical malpractice claims have had minimal impact on rising healthcare costs. On the other side, there are critics who contend that greedy trial lawyers have caused healthcare costs to spiral out of control because doctors are practicing defensive medicine.

In this debate, however, no one is speaking about the victims. As we have noted repeatedly, this continuing effort to blame lawsuits for spiraling health costs is puzzling and unwarranted. The focus should shift to efforts on curbing negligent treatment of patients. Indeed, wouldn’t safer practices eliminate lawsuits and lower premiums?

We certainly hope that the debate shifts soon. In the meantime, here are a few items to consider:

The Salt Lake Tribune editorialized that a recent CBO report “estimated that a package of medical malpractice reforms could save the federal budget about $41 billion in health care costs and increase federal tax revenues another $13 billion, both over a 10-year period.” But “to put the numbers into perspective, the CBO estimates that the package of reforms it studied would reduce total national health care spending by about .5 percent (one-half of 1 percent). When it comes to health care, any reduction in rocketing costs is a good thing, but reforming malpractice law is hardly a panacea. The other side of the coin is that doctors and hospitals regularly kill people through their negligence.” The goal “should be to reform the process without denying people who have been injured or killed their day in court and just compensation.”

In a blog at the Milwaukee Business Journal, Corrine Hess wrote, “The Manhattan Institute’s Center for Legal Policy released a report Tuesday quantifying just how much of an impact litigation has on health care costs. The report, which is in the most recent edition of the Trial Lawyers Inc. series, shows the direct cost of medical malpractice litigation is $30.4 billion annually. The threat of litigation has prompted 93 percent of doctors to practice defensive medicine, which in turn comprises at least 12 percent of the relevant gap in health care spending between the United States and other developed countries, according to the institute.” The institute “said the findings signal a clear need for tort reform to be included in national health care reform.”

When reading these two items, it’s hard not to wonder who to believe. But if you bring the focus back to saving the lives of patients, the image gets clearer. We should be focusing on the safer delivery of healthcare services.

For a look at our past blogs on these topics, click here.

New Mass RMV service reminds you on license renewal

The Massachusetts Registry of Motor Vehicles (RMV) is offering a new and free service to notify residents that it’s time to renew your license. This makes up for the fact that since November 2008 the RMV no longer sends a renewal in the mail for your driver’s license. To address public concern on the issue, the RMV has created a system which will send you one alert via email, phone or text message (you choose which) approximately 30 days prior to your license expiration.

To sign up for this free service, click here. The site is hailed by the RMV as a safe electronic notification services that will help you remember to renew your MA driver’s license. With this free service you determine how the RMV reminds you (by email, phone or text (SMS) message). The RMV has partnered with Sendza, an outside firm that will deliver your automatic reminder at no cost to you or the Commonwealth.

To get started, you will need your Massachusetts license or MA ID number, date of birth, and your residential zip code so that the RMV can verify your information is in its database. The RMV will then transition you to the Sendza website where you will complete the process to subscribe to the reminder service. Sendza will ask you to select how you want to be notified—by email, phone or text message. You must then provide the appropriate email address or phone number. According to the RMV, Sendza receives coded information that enables them to deliver your reminder, but never sees your personal information and cannot display or share it.

Medicare madness for elderly tort victims

We wrote about some of the pitfalls of the Medicare bureaucracy and the impact on personal injury cases back in July. You can see that piece here. Just a few months later, the Medicare giants are roaring again with new tactics and legal strategies that continue to prevent elderly tort victims from getting justice.

In a column in Mother Jones (10/8), Stephanie Mencimer wrote, “In recent years, Congress has pushed Medicare to aggressively pursue debts from injured elderly people who have won compensation through lawsuits or liability insurance.” For people “on the receiving end of the collections process-mostly elderly car accident victims…it can be a traumatic ordeal.”

After “forcing plaintiffs’ lawyers to serve as Medicare’s debt collectors failed to produce the desired results, Congress passed new debt-collection measures as part of the 2007 SCHIP reauthorization. Starting next year, insurance companies must report any settlements or judgments involving Medicare beneficiaries to CMS. If a Medicare beneficiary fails to reimburse the agency for health care costs it paid, the agency can punish the insurance company with double damages.”

But “the prospect of harsher penalties is already leading to insurance company overkill that, combined with Medicare’s bureaucracy, has kept some elderly folks from receiving money that’s rightfully owed them.”

You can read the full article from Mother Jones by clicking here.

As we said previously, while it may seem fair for the government to seek recovery from cases, a more orderly procedure needs to be developed by the government for speedy resolution of claims and greater communication with lawyers for claimants. Until this orderly process put in place, elderly clients may go without legal representation, and may have to forgo seeking redress for their injuries altogether. That will result in an inability to seek justice on behalf of elderly clients, and will leave the Medicare system unreimbursed for costs paid. Let’s hope that any efforts at health care reform include revisions to these bureaucratic nightmares.

Medical malpractice insurers earning more than ever

As Congress debates nationwide health care reform, a new analysis reveals malpractice insurers have long-played a cruel hoax on legislators and the public. This information comes from a new reports released by the American Association for Justice which can be viewed by clicking here. By systematically distorting profits and losses, insurers created phony “financial crises,” so lawmakers would limit the legal rights of injured patients. Today, while premiums and health care costs skyrocket, malpractice insurers have average profits higher than 99 percent of Fortune 500 companies.

The key findings of the report, which analyzes the annual financial statements of the 10 largest U.S. medical malpractice insurers, include:

• The average profit of these insurance companies is higher than 99 percent of all Fortune 500 companies and 35 times higher than the Fortune 500 average for the same time period.
• Malpractice insurers have seen their profit margins range from 5.9 percent to 74.8 percent, with an average of 31.2 percent.

Medical malpractice insurers have underestimated profits and overestimated losses, creating overblown insurance “crises” to garner support for limiting patients’ legal rights. Then years later after the “crises” abated, revised filings show the companies were never in the financial peril they claimed.

• After overestimating losses, insurers have since reported that losses over the last five years have been approximately 13.5 percent lower than initially reported.
• By overestimating losses, companies have underestimated profits. Insurers averaged about 5.1 percent higher profits last year and 12.4 percent higher profits two years ago; these levels of profits will likely rise as upward revisions are made.
• Medical negligence laws were passed under false pretenses. Overblown reported losses were used by the insurance industry to justify new measures restricting the rights of those injured by medical negligence.

“Insurance companies are gouging doctors on their premiums to mislead lawmakers. And today, injured patients are often left with no avenue to pursue justice, while health care costs continue to skyrocketing,” said American Association for Justice President Anthony Tarricone, managing partner at Kreindler & Kreindler LLP.

“As Congress looks to overhaul our nation’s health care system, it’s clear that limiting the legal rights of patients won’t lower health care costs or cover the uninsured,” continued Tarricone. “The focus should be on eliminating medical errors that injure or kill tens of thousands of Americans every year. Insurance companies clearly don’t need another handout.”

Medical malpractice in the federal health care fray

Now that the President has opened the door to discussion of medical malpractice as part of his healthcare package, the debate rages on. Here is a recent sampling provided courtesy of the American Association for Justice (AAJ):

In an op-ed in the Minneapolis Star Tribune (9/24), Minnesota lawyer Brian Wojtalewicz wrote, “Insurance and other large corporations, along with such politicians, have propagandized the claim that big verdicts are the cause of skyrocketing health care costs.” But “not only would caps on damages be cruel to those most badly harmed by malpractice, they simply don’t lower premiums for doctors.” Wojtalewicz asks, “What about a true medical malpractice crisis — the malpractice itself?” Wojtalewicz provides several examples of malpractice cases, and supporting studies.

Franklin: Federal attempts at med-mal reform misguided. In an op-ed in the Washington Post (9/24), medical malpractice consultant Cory Franklin wrote, “Medical malpractice is an imperfect process.” But “most proposed federal attempts at malpractice reform would either be unworkable or would infringe on individual states’ prerogatives to reform their systems.” Tort reform “does address one undeniable consequence of malpractice: the high cost of malpractice insurance.” But “access to specialists and exorbitant malpractice rates are primarily local problems, not national concerns. States should decide when and how to curb non-economic damages or restrict attorneys’ fees to relevel the playing field in a given locale.”

Leonhardt: Republicans can’t enact tort reform unless they negotiate. In the “Economix” blog at the New York Times (9/24), David Leonhardt wrote, “Republicans have an important point to make in the health debate: doctors do seem to practice some amount of so-called defensive medicine, out of fear of lawsuits.” But health reform “isn’t likely to include much malpractice reform unless the Republicans negotiate for it. And the Republicans can’t negotiate for it if, with the exception of Senator Olympia Snowe, the Maine Republican, they have made it clear that they’re going to oppose health reform virtually no matter what.”

No-fault med-mal system recommended. In “The Stump” blog at The Oregonian (9/24), former Oregon labor commissioner Jack Roberts wrote, “Maybe it’s time to consider a more radical reform, such as a system of no-fault insurance for medical malpractice similar to the workers’ compensation system.” Such a system “would compensate any patient whose surgery or other treatment (or lack of treatment) resulted in an adverse result, whether or not the doctor, hospital or nurse was at fault. It could redirect resources currently spent finding fault to compensating patients who have been harmed. And it would recognize that even where medical providers have performed their jobs badly, large jury verdicts are not paid by the wrongdoers but shared by everyone through the insurance system.”

This week, AAJ launched an ad campaign, 98,000reasons.org, making clear that the focus of any health care reform should be patient safety, not limiting patients’ legal rights.  That campaign that has resulted in quite a few stories which include the following by DailyKos, MyDD and Huffington Post. In addition, AAJ President Anthony Tarricone published an op-ed in the Politico on the same topic which can be viewed by clicking here.