October 26th, 2008

Political Malpractice (By John McCain)

If I were a donor to the McCain campaign, I’d want my money back. In selecting Sarah Palin as his vice presidential choice, he was clearly negligent, or in the terms this blog uses, has committed malpractice.

The definition of malpractice — and the way most professional malpractice cases are fought in the courtroom — turns on this distinction in language: The plaintiff argues that the professional “departed from customary and usual practice” while the defense argues that the mistake was a “mere error of judgment” and that such errors do not constitute negligence. In other words, if both x and y are viable options and picking x turns out bad, then such error is a non-actionable judgment call.

So did McCain commit political malpractice? Well it sure seems that picking Sarah Palin was the best thing to happen to the Democrats in years, as she helped to drive people away from McCain. And the damage was certainly foreseeable.

Let’s consider the evidence of political malpractice in the V.P. selection:

  • A central McCain theme is his many years of experience to contrast him with the youthful Obama. But McCain met Palin only once before picking her as his running mate. Even mid-level corporate employees go through multiple rounds of interviews to make sure they are properly vetted. Obama has turned McCain impulsiveness into his own theme. This wasn’t just a judgment of choosing between Main Street or Broadway to get from Point A to Point B but, perhaps more than anything, akin to backing out of a driveway without looking. (Addendum: From McCain’s own mouth:

    …on Oct. 16, McCain praised Palin but went out of his way to point out how little he knew about her before he chose her as his running mate. “I didn’t know her real well,” McCain said. “I knew her reputation. I didn’t know her well at all. I didn’t know her well at all.”

  • McCain is 72 years-old and has had multiple bouts of melanoma — the most deadly form of skin cancer. Thus, the experience of his running mate matters more than in most elections in addition to the issue of contrasting him with Obama. But he chose someone whose foreign policy experience is that she can see Russia from a remote Alaskan island, perhaps one of the worst political arguments ever made. Once again, McCain undercut himself.
  • One of McCain’s signature issues is fiscal responsibility and curtailing pork barrel spending. He then picks the governor of Alaska, which ranks first on a per capita basis in the pork department. And it is worth noting, a state that leads in pork despite its oil wealth that allows it to send checks to the citizens. Picking a leading Alaskan official undercut the domestic policy position that McCain’s had elevated above all else.
  • It is a necessary political reality that primary candidates run to the extremes of their party to win primaries, because this is the base that votes. Primary winners then must pick a centrist candidate for VP to win the undecided middle. McCain violated that cardinal rule by picking someone far off to the right. If the polls are correct, the middle has turned against him, a clearly foreseeable event.
  • McCain has long eschewed the politics of personal destruction, and was of course on the receiving end of it from George Bush in the 2000 election. He continued in that vain to win the 2008 primary, to the admiration of many. Then flip-flopped to violate that principle he held dear. At the center of the nastiness? Yep, Sarah Palin.
  • Another McCain theme was the “eltism” of Obama. While no one seems to be certain exactly what that means, it is safe to say that “a respectable Republican cloth coat,” as Nixon put it in his Checkers speech, was not elitist. While McCain has trouble with this concept given his $500 loafers and his many houses, it should have made him (and the staff he hires) that much more cautious about spending. Yet once again, undercutting his theme, his V.P. and/or staff spends a fortune in clothes at some of the priciest stores in the country. While the country spirals into recession.

Politics gives people many options. But when a person makes a decision that is not even a viable option then one crosses the line from merely making a bad judgment call, to departing from accepted practices. That’s malpractice.

Those who gave money after the Palin nomination, of course, have no cause to beef. But those who gave their hard-earned money before The Choice have plenty of reason to be screaming if McCain/Palin should lose. They got robbed, pure and simple, by the gross negligence of this selection.

If I were a pre–Palin donor, I’d want my money back.

 

October 24th, 2008

Medical Blogger Sued for Malpractice (Will He Blog It?)

Medical blogger Shadowfax over at Movin‘ Meat has been sued for malpractice. He announced it on his blog.

The information came to him like this:

Nothing good ever comes via certified mail, and it was with a sense of dread that I took the envelope, noting the return address from a law firm. I opened it and was hit in the gut by the block type at the top reading “NOTICE OF INTENT TO SUE,” with my name underneath.

While Shadowfax remains a pseudonym, he is ever mindful of the story of Flea, who had blogged his own malpractice trial under a pseudonym. When plaintiff’s counsel found out, and confronted him on the witness stand, it made front page news.

You might guess that the doc is not happy. He writes:

So I’m not scared. I am pissed. Not at the plaintiff. Just in general, that I am going to have to do the whole deposition-discovery-negotiations-trial thing. I didn’t want to go through this, and it’s going to be painful and annoying. I’m buoyed by the belief that my care was not deficient, and that the case is defensible. In fact, I look forward to making my case that the care was superior

Will Shadowfax blog details of the suit? Read on at his blog to find out…but do it quick since he has threatened to delete it.

 

October 24th, 2008

The Deadlocked Jury (Ted Stevens Trial) – Updated


The news from inside the Sen. Ted Stevens jury room was not pretty: “Violent outbursts” from a juror. Essentially, if this juror has others in her corner on the merits, it almost guarantees a deadlocked jury. And a hung jury is good for a criminal defendant.

Here’s the note from the jury room:

“We, the jury, requests that juror number nine be removed from the jury. She is being rude, disrespectful and unreasonable. She has had violent outbursts with other jurors, and jurors are getting off course. She is not following the laws and rules as stipulated in the instructions.”

I’ve had juries out for days on end. But in civil cases in New York, we only need 5/6 for a verdict. I have my own theory on why juries fight and deadlock — and how I tried to avoid it when I sat in the jury box some years ago and how I try to avoid it when I stand in the well– and it can best be summed up in one word: Ego.

Nobody likes to admit they are wrong. Thus, when jurors stake out a strong position at the start of deliberations, a problem is created if there is a conflict. Someone will have to change their mind. Someone will have to appear “weak.” That’s bad. If you want someone to change their mind, you have to make it easy for them. The carrot works better than the stick.

How do you avoid the problem? When I sat jury duty on a criminal case, I grabbed the bull by the horns when we went in to deliberate. I suggested that we go around the table and, without saying if we thought the defendant was guilty or not, simply discuss a piece of evidence that was interesting. That was it. Thus, without having staked out any ground as to ultimate guilt or not, it would be far easier for people to be receptive to alternative arguments and evidence.

With that experience in my back pocket, I often take a minute during my own summations to discuss the importance of listening to others and being receptive to others. I will, on occasion, tell them bluntly why, discussing the problem of ego and changing one’s mind. (Defense lawyers, by contrast, might be telling jurors they should stick to their guns, hoping for hung juries.)

Whether such cautions were given at the start of the Ted Stevens deliberations, I don’t know. Presiding judge Emmet Sullivan has gave the jurors a pep talk, telling them they should “encourage civility and mutual respect” in their consideration of all the evidence. But it may be too late, as the threats of fisticuffs can easily kick in the ego factor that prevents people from changing their minds, and causes either a hung jury or one that is severely compromised.

Verdicts, sometimes, are more about ego and less about evidence than the litigants might have hoped.

Update:

 

October 22nd, 2008

Kafka and Me (Why Bloggers Need Not Be Perfect)

I just read Franz Kafka’s The Trial for the first time and learned something pretty startling: There were elements that resembled a blog.

I picked up the book on the way to vacation. (What does a Jewish lawyer from New York pick to read on a visit to Prague? A book by a Jewish lawyer from Prague.)

The startling part to me was not its well-known theme — a man arrested and asked to defend himself in an unknown court with unknown charges — but the fact that such a famous work was also very much unfinished. Much of Kafka’s work, including this one, was published by a friend after Kafka’s early death.

The start of The Trial is ominous enough:

“Someone must have slandered Josef K., for one morning, without having done anything wrong, he was arrested.”

And from there K. descends into the hell of the all-powerful, all-knowing and unseen bureaucracy.

The recent translation I read — and the reason this comes up in the context of blogging — had explained in the forward that this version was published to be as true to the notes Kafka left as possible. That means errors in names (same name spelled differently), the timing of events, and descriptions of scenes remain as written. Unfinished chapter fragments are tacked on after the end. The actual order of chapters, in fact, is not entirely known. There were paragraphs that went on for a dozen pages, as if the notes had been written down for later editing.

Now blogs can be like that. Unfinished. Rough around the edges. Often with mistakes, which we hope are merely formalistic and not substantive. Because if the substance works, then (like Kafka) errors in the formalities of writing will (we hope) be overlooked.

And that, from this day forward, will be my excuse for written errors.

 

October 16th, 2008

Linkworthy

Brooklyn federal Judge Jack Weinstein stops decades of New York personal injury practice dead in its tracks when he tosses out the actuarial life expectancy tables we use because the distinction between black and white life spans is discriminatory and unconstitutional (New York Law Journal via Law.com):

“Reliance on ‘race’-based statistics in estimating life expectancy of individuals for purposes of calculating damages is not scientifically acceptable in our current heterogeneous population,” Weinstein wrote in McMillan v. City of New York, 03 civ. 6049. (Update – The decision is here: /RaceAndFutureDamages.pdf)

Did you spend money to be placed in some lawyer directory? Susan Cartier Liebel says lawyer directories could be worthless;

Ron Miller on the ugly practice of lawyers trying to get access to accident police reports in an effort to obtain clients (also at Overlawyered);

A UK rugby player sues due to a career-ending eye injury (BBC);

Mediator Diane Levin hosts Blawg Review #181 on Conflict Resolution Day;

Joe Paduda has the pre-election health care debate in his Health Wonk Review;

And a patriotic dad decides to name his kid Sarah McCain Palin. Though he and his wife had agreed to Ava Grace. Quizlaw with the details.