Playing the extremes
Sunday's Washington Times published an editorial by Jay Ambrose on the medical malpractice issue, entitled "First, let's stop the lawyers". Like other commentators, he uses a term which aggregates a wide variety of different persons together in one indistinguishable lump. This time, though, it's not "the trial lawyers". It's just "the lawyers". No matter than some lawyers are engaged in the steady but unheralded work of defending the doctors and hospitals who are targets of lawsuits. No matter that "stopping the lawyers", by which I assume he means preventing lawsuits from being filed, would leave large numbers of people without a remedy at law for injuries that they have suffered as the result of someone's negligence.
Ambrose begins by using a familiar propaganda technique of caricaturing the other side's position:
Put a scalpel in the hands of a surgeon and he will sure enough cut your throat, or so many of the nation's trial lawyers would have you believe. To hear the lawyers tell it, a chief reason for their filing thousands of malpractice suits is the mayhem that vast numbers of deadly doctors are visiting on innocent patients. The doctors must be curbed and the patients must get justice, the lawyers say.
The strong pull of the colorful phrases is irresistable: "cut your throat", "mayhem", "vast numbers", "deadly doctors", "innocent patients". And of course there are some plaintiff's lawyers who talk and think like that. But I have never heard a lawyer "tell it" as Ambrose claims. There are far more who take a more realistic view of their opponents. Most capable plaintiff's attorneys that I have met in the course of over 20 years of representing the defense think of most doctors as responsible professionals, not "deadly doctors". Most of them look at physicians as people who are working hard to do a good job for their patients, but who sometimes cross the line and make a mistake which causes injury or death to a patient.
Most plaintiff's attorneys realize that they don't have to convince a jury that the defendant is a "butcher", an incompetent, a charlatan, or an unfeeling and uncaring money-grubbing mercenary. Except in the rare case where such descriptions are in fact accurate, they realize that taking such an extreme position would unduly antagonize the members of the jury who do, after all, tend to look favorably on doctors and the work that they do. The best plaintiff's lawyers are those who regard the defendant as someone who cares for his patient, who works hard to do well for him, and who is capable and conscientious -- but who sometimes fails to live up to the standard that his profession sets.
I once observed the following exchange during the course of voir dire:
Mr. Smith: Mrs. Sylvester, do you have any beliefs or attitudes about doctors that you believe would color your ability to judge the issues in this case?
Mrs. Sylvester: No, I don't think so. I mean, most doctors are good doctors and work hard, but I know that there are some bad doctors out there.
Mr. Smith: Well, we are not saying that Dr. Harvey here is a bad doctor, and we don't think that the evidence will suggest that he is a bad doctor. But we want you to recognize that good doctors will sometimes make mistakes and harm a patient. That does not make them bad doctors. But the law does require that any doctor, good or bad, who makes a mistake that violates the standard of care and harms a patient, even in good faith, will have to compensate his patient. Can you accept that and apply it to this case, based on what you find to be the facts?
That was a lawyer who knows how to play to a jury when trying a case against a doctor.
9:08:44 PM 
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