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A Proposal for the use of Psychodrama in Law School

27 Mar

Kingsfield lectures in "The Paper Chase"

The Christmas before I came to law school my parents gave me a DVD of The Paper Chase.  It’s a common gift for future law students even though it’s dated and lacks the acting prowess of Reese Witherspoon. The movie follows Hart during his first year at Harvard Law School, focusing on the adversarial relationship between Hart and his intimidating contracts professor, Charles Kingsfield.  In one memorable scene, Kingsfield calls on Hart to explain the case of Hawkins v. McGee–the case of the “Hairy Hand.” Though unprepared for class, Hart manages to fumble through the legal reasoning and arrive at the correct legal application. He emerges distraught but victorious.

Law School has become somewhat kinder since the era of Professor Kingsley, but the teaching method remains largely the same. The casebook and Socratic method endure.  Professors ask students how the law should be applied in a case then expose the logical flaws in students’ arguments.  The goal of this method is to teach students how to interpret theories, statutes and precedents correctly while also honing their legal reasoning skills.  Those students who best navigate the delicious ambiguity and grey areas of the law are rewarded with high grades and a spot on the law review.  The greatest of the legal reasoners take their skills to the Moot Court competition.  The winner there is whoever best argues that the law favors their client regardless of whether it actually does.

The law school pedagogy creates a culture that values the type of work law students pursue rather than the merits of their cases.  The legal community grants prestige to lawyers who argue before the Supreme Court but cares little about which side they represent.  I believe these values derive from a legal education that discourages sentimentality and feeling. The renowned trial lawyer Gerry Spence found similar fault in his own legal education.

“What we really experienced in law school was a lobotomy of sorts, one that anesthetizes the law student against his emotions and attempts to reduce law to some sort of science.” – Gerry Spence (Win Your Case p. 77) Continue reading

State of the Medical Malpractice Reform

2 Feb

I’m willing to look at other ideas to bring down [Health Care] costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits. President Obama – 2011 State of the Union

The President shocked both Republicans and Patients Rights Advocates when he indicated that he would be willing to consider medical malpractice reform. Businesses, Doctors and Tort Reformers have been yelling about the “need” for Medical malpractice reform for years. Members of these groups often point to a recent study (PDF) conducted by the Harvard School of Public Health which found that 40% of malpractice filed claims lack evidence of medical error or actual patient injury. Despite this study many still take issue with the President’s depiction of medical malpractice as an out of control area that needs to be reined in. I will not discuss those arguments in this post. (See Tom Baker’s The Medical Malpractice Myth, for an examination of the academic literature on medical malpractice.)

Instead, I’d like to look at what Republican ideas the President might consider.  In the House there is currently a bill that intends to rein in those frivolous lawsuits, H.R. 5. The preamble of the bill says it is, “To improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system.”

Among other methods, the bill seeks to accomplish its goal by imposing a $250,000 cap on noneconomic damages.

Noneconomic damages includes compensation for the pain an injured patient suffers because of a negligent hospital, doctor or other healthcare provider.  Noneconomic damages also compensates individuals for the lost company of a loved one or lifetime disfigurement.

To quote  Representative Linda Sanchez, “H.R 5 is a deplorable bill”.  Indeed, capping noneconomic damages is the most useless method for reducing frivolous lawsuits. Damages caps certainly cut down on total lawsuits, but only because the cap makes it financially infeasible for an attorney to bring a lawsuit on behalf of a person with no economic damages. No job. No lawyer. No lawsuit.

The fact is that an attorney cannot afford to take a case for someone with no income because their maximum award at trial is limited to $250,000. After expert witness fees, court costs and travel, a medical malpractice case can easily cost over $100,000 to get to trial. Leaving the plaintiff little to nothing after attorney’s fees.  And with damages capped, insurance companies have almost no incentive to settle.

Sadly, damages caps prevent lawsuits by those who are often the most vulnerable to injury from negligent health providers. Children, the elderly and disabled persons cannot secure representation when a law deems their case has a maximum value of $250,000.  We can see this happening in states that have already capped noneconomic damages.  Perhaps most notably are the tort reform measures taken in Texas–House Bill 4 and the accompanying Proposition 12. Since those measures passed in 2003 the number of medical malpractice lawsuits in Texas have dropped dramatically. But that drop has been at the expense of thousands of wrongfully injured patients who can no longer secure representation. (For further discussion on  HB4 see Mark Lanier‘s interview covering the fallout).

Without a doubt, H.B. 5 is not a solution for reducing the number of frivolous lawsuits. A cap on noneconomic damages does nothing more than arbitrarily reduce the total amount of lawsuits. This reduction is done by creating categories of individuals who get shut of the courthouse doors.

Law & Mind blogs: Part 2

1 Feb

Choices Worth Having examines how people make decisions. Social theorist Barry Schwartz psycho-dissects current events and topical subjects. Professor Schwartz believes our society makes poor decisions because of perverse incentives and flawed methodologies. His longish posts critique the status quo of decision making while offering an alternative approach that appreciates human nature.

The now defunct Cognitive Dail reported on interesting developments in cognitive psychology. It’s a shame that the blog went inactive last January after a five year run because the posts are incredibly comprehensible despite the academic subject matter. A post on synesthesia, experiencing one stimulus (e.g. sight, sound) in multiple modalities (taste, vision, etc.) prove to be interesting and easy to understand though I had no previous knowledge of the phenomena.

Daniel Gilbert writes with the wit and perception of a good fiction writer. His “stumbling on happiness” blog acts as an extension of his best-selling book by the same name. Professor Gilbert researches affective forecasting as a social psychologist at Harvard. Unlike many social scientist, Professor Gilbert arguments do not rely on naked statistics and reasoning. Instead, he shows us through narrative and humor how we’re unable to deliberately steer our future lives toward happiness.

In contrast to Gilbert’s story-like posts, Cognition & Culture caters to members of the emerging cross-disciplinary field of cognition and cultural studies.  This intended audience makes many of the posts somewhat inaccessible for those without some background. On the other hand, if you already have an opinion on whether “Natural Pedagogy theory should formulate the Genericity Bias,” you may be interested in the generally analytically focused posts.

The Consumer Law & Policy Blog is sponsored and mostly run by Public Citizen’s litigation group. Ralph Nader founded Public Citizen as an umbrella organization for a number of the consumer advocacy initiatives. Nader’s influence is present in this blog that covers any and all things related to Consumer Protection. It’s all here. From policy to litigation and the occasional reflective piece on the purpose of consumer protection work. If you’re interested in Consumer Protection issues, this is a must read.

The posts are short and crisp, just the facts type writing. The writers usually utilize links to more thorough analysis of an issue or event rather than discussing it themselves. In terms of subject matter, the posts tend to lean more toward regulatory developments and changes in consumer law. Litigation matters are covered but they tend to be consumer fraud and predatory lending type class-actions or impact litigation. Other areas of litigation such as products and pharmaceutical liability and personal injury are glossed over or skipped entirely. Searching the archives retrieves no posts related to Yaz injuries or lawsuits of deaths attributed to Gardasil.

Despite any subject-matter shortcomings, there’s great material here that’s pertinent to both those in the consumer protection  field and anyone who’s just interested. The posts give attention to events that often aren’t covered in newspapers and other media. Going through recent posts, I learned that in March the Consumer Product Safety Commission will launch a web-based public database launch a web-based public database containing all consumer complaints about products. Another brief post discusses the Toyota sudden-acceleration lawsuits and a shift in strategy being made by the plaintiffs’ attorneys.

Like my childhood hero Batman, we may not be the hero you want, but we’re the one you need.

My favorite of the posts I reviewed discussed President Obama, Batman, and The Role of the Consumer Attorney. Class action attorney, Steve Berk, compares Batman to the Plaintiff’s attorney. The newest rendition of the Dark Knight is a hero needed to clean up Gotham, but hated by much of the city. Much like Batman, the Plaintiff’s attorneys are despised by much of the population and much of the legal profession as well. But despite being called ambulance chasers, vultures and worse names, plaintiffs attorneys still fight for safer products, clean water and responsible corporations.

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