FRANKLIN COUNTY TRIAL LAWYERS ASSOCIATION Ohio’s Leader of the Local Trial Bars QUARTERLY COMMENT Volume 14, Number 2 Spring 2002 President Committee Chairs: D. Andrew List, Esq. Commercial Torts Vice President Joseph F. Murray, Esq. Mark Kitrick, Esq. Domestic Relations Secretary Amy Weis, Esq.. Michael S. Miller, Esq. Employment Discrimination Treasurer S Josh Morrow, Esq. Jami S. Oliver, Esq. Negligence Law & Insurance Law Scott Bowman, Esq. & Shawn Dingus, Esq. Medical Negligence Trustees Robert D. Erney, Esq. Jane P. Koprucki, Esq. Probate Timothy J. Boone, Esq. Bryan D. Johnson, Esq. Robert D. Erney, Esq. Workers’ Compensation Janet Phillips, Esq. Matthew P. Cincione, Esq.. William C. Mann, Esq. – Ex Officio Deposition Bank Jane Koprucki, Esq. Membership Robert J. Wagoner, Esq. Newsletter Editor Technology Timothy J. Boone, Esq. Mark Lewis, Esq. & Glen Pritchard, Esq. Table of Contents I. Message From The President – Your Association: In Pursuit of Excellence Page 2 II. State Farm Strikes “Out” Again Page 3 III. Beware Of Another Phony “Litigation Crisis” Page 3 IV. Effective Trial Depositions Page 4 V. Bill Mann’s Top Ten Ways For Lawyers To Avoid Disciplinary Problems Page 7 VI. TJB’s Trial Tips – Make A Connection With The Jury Page 8 VII. The “Facts” About The Medical Malpractice Insurance Crisis Page 10 VIII. Announcements and Events Page 12 The Quarterly Comment is a journal containing fact, opinion and analysis. The FCTLA does not endorse the views, opinions, or analysis of the individual writers who contribute to this publication. The views, opinions, or analysis of the writers are his/her own. 2 YOUR ASSOCIATION: IN PURSUIT OF EXCELLENCE By Andy List, President In April, 2002, the Ohio Academy of Trial Lawyers presented us with their Outstanding Local Trial Bar Award. While we are pleased and honored to be recognized by the Academy, we want to assure our members and friends that we will not become complacent. In fact, the opposite is true. Your Officers, Directors and Committee Chairpersons are dedicated to making 2002-2003 the most successful year in FCTLA history. We are pleased to announce the formation of the Technology Committee, co-chaired by Mark Lewis and Glen Pritchard. With Mark and Glen as our leaders, we intend to upgrade the FCTLA website (www.fctla.org) and to transform it into a first-rate, on-line legal resource for all members. For example, within the next several months, we expect that members will be able to obtain expert deposition transcripts directly from the website. (A special thanks to Jane Koprucki, Chairperson of the Deposition Bank, for her tremendous efforts in maintaining and updating this valuable member resource). Additionally, we are pleased to announce the formation of committees on employment discrimination (Chairperson, Josh Morrow), medical negligence (Chairperson, Rob Erney), and commercial torts (Chairperson, Joe Murray). As these and other areas of the law become increasingly complex, it is important that we have the resources to remain current. Through regular reports at our monthly meetings and special seminars, these committees will allow us to do so. We owe that much to our clients. Also, we are confident that the membership meetings and special seminars will be better than ever in 2002-2003. Jane Koprucki will chair the annual Ethics, Professionalism and Substance Abuse Seminar scheduled for Wednesday, December 11, 2002. We encourage you to mark this date on your calendar. Finally, your Vice President, Mark Kitrick, has begun to assemble a nationally known roster of speakers for our monthly meetings. On September 17, 2002, Stanley Chesley will speak to us about the future of tort litigation in Ohio. On November 19, 2002, Mark has invited Ed Lazarus, the Director of State Affairs for the Association of Trial Lawyers of America. These are just two of the many fine speakers who will join us during the coming year. We thank Mark for his dedication in bringing us this national faculty, and we encourage you to mark these dates on your calendar. By providing legal resources, nationally recognized speakers, continuing legal education (at minimal cost), and the opportunity to network with others who share similar challenges, we hope that each member will come to rely upon the FCTLA as an extension of his or her practice. Currently, your ―FCTLA Firm‖ has 320 members. We urge you to invite your friends to join us, and we look forward to seeing you in September. 3 II. STATE FARM STRIKES “OUT” AGAIN Lawyers Weekly recently reported that a West Virginia jury this summer awarded $1.25 million in punitive damages in a unfair settlement practices suit against State Farm Mutual Automobile Insurance Co. Apparently, a 21-year-old college student was rear-ended on May 21, 1996 by a driver insured by State Farm. The collision pushed the student 70 yards into a cornfield, knocking him unconscious. As a result, the plaintiff suffered head, neck and back injuries. Some how after a two-day investigation, State Farm managed to determine that the plaintiff was responsible for the collision and denied all his claims. Three years later, the plaintiff wanted to settle the case for $35,000. Surprisingly, State Farm refused, and instead offered to settle for $15,000 in 2001. Plaintiff rejected the offer. At trial, the jury found the defendant 90% responsible. That caused the plaintiff to sue State Farm for unfair settlement practices under West Virginia's Unfair Claims Settlement Practices Act (Act). Earlier this month a Brooke County, WV jury awarded the plaintiff $89,000 in compensatory damages and $1.25 million in punitive damages. In order to come to this award the jury had to find that State Farm committed violations of the Act with such frequency as to indicate a "general business practice" and that the company willfully, maliciously and intentionally utilized an unfair business practice in failing to settle the plaintiff's claims. [Editor’s Note: Can you image State Farm doing these things? Seems almost impossible, right?] III. BEWARE OF ANOTHER PHONY “LITIGATION CRISIS” 1 By William C. Mann, Esq. According to a page one story in the April 11, 2002 edition of The Wall Street Journal (An Engine of Jobs Sputters as Rates For Insurance Rise): Insurance rates are rising for businesses across the country. ―Insurers point to the estimated $50 billion in claims from the September 11 attacks as a big reason for the rate increases. But Mr. Bennett [a small business owner] and other business owners strain to see the connection.‖ According to the Journal: ―He’s right. The higher premiums many small and midsize businesses hundreds of miles from New York City now face are the legacy of a decade of imprudence among insurers - a period that combined a relentless price war with aggressive risk taking. From 1993 to 2000, underwriters slashed rates, sometimes as much as 40%, and fought for customers by loosening terms on all types of business policies – from directors and officers’ liability coverage to medical-malpractice packages to workers compensation insurance.‖ (Emphasis added). According to the Journal, insurers eventually were paying out an average of $1.07 in claims and related expenses for every $1.00 received on business coverage, which insurers could sustain because these shortfalls were more than offset by investment income the insurers earned on premiums. The robust economy of the Clinton years (1992 – 2000) is gone and investment income is down. Therefore, the insurance industry needs to make up the above-described shortfalls that have been caused by its own management practices that are described in the Journal article, above. How will the insurance industry do this? I predict that: It will continue to substantially increase premiums. It will blame these increases on another phony ―litigation crisis‖. 4 It will seek more so-called tort-reform (i.e. wrongdoers protection) to further reduce the ability of injured people to pursue their perfectly legitimate claims. So once again, the insurance industry will falsely blame the problems, caused by its own management practices, on injured people and their ―greedy lawyers‖. I predict that this will happen soon. Be on the alert. [Editor’s Note: See related Medical Malpractice article on page 10.] IV. EFFECTIVE TRIAL DEPOSITIONS 2 By Jeffrey D. Boyd, Esq. Introduction Today "trial depositions" usually means "video trial depositions," and for good reason: when properly handled, video is much more compelling than the dry reading of a transcript. Depositions that are recorded on videotape and replayed at trial in lieu of live testimony have four unique components (in addition to the substance and presentation of the testimony) that make them different than a stenographic deposition for use at trial. These components are: 1) the video recording, 2) the audio recording, 3) the video playback, and, 4) the audio playback. Ignore any one of these components at your peril. Video and Audio Recording A. Video Recording Many of the early technical concerns about videotaping have been eliminated due to advances in camera technology. Video cameras can be purchased at five-and-dime stores that are better than the best cameras available to the major networks just a few years ago. Virtually any camera made within the last five years is good enough for the job, and most companies that provide video recording services have very high quality cameras and recorders. But a great deal of video recording for legal depositions remains poorly done. The reason for this almost always is poor lighting! Just because most modern cameras can shoot under dim light does not mean it is a good idea to do so. The number one problem in video playback is the poor quality of lighting that was in place when the picture was recorded. Anyone who has visited a television studio knows that a major effort goes into lighting the simplest shot. It takes a great deal of attention to light the human face to make it visible and appear natural on TV. This has nothing to do with the quality of the camera or the attractiveness of the speaker. It is simply a reflection of the physics of the cathode ray tube; bright, clear, well-placed lights make people look better (and thus improve the message they have to communicate) than "natural" light. Most video depositions suffer from being too dark. Darkness leads to muddy colors, poor contrast and "definition" - the ability to discern separate things - along with poorly lit exhibits and other demonstrative evidence. Incorrectly balanced lighting, even if bright enough, causes glasses to glare (the white spots in a speaker's glasses that obscure the speaker's eyes); "hot spots" and flares; and unflattering, distracting shadows. Remember: poor lighting of a trial presentation forces the jury to work too hard to see (and to understand) the deposition. This leads to boredom, the prime enemy of trial presentations. Any discussion of lighting leads to the question of makeup. The President wears it. Sylvester Stallone wears it. Iron Mike Tyson, the former heavyweight champion of the world, probably wears it when he must appear on camera. Half the population wears makeup almost every day, even when they do not need it. Makeup is a good idea. It makes everyone look better on the tube. It hides blemishes and takes the shine off of bald spots. Still most lawyers never have the courage to request that the expert put makeup 5 on before giving a deposition. Nor do most experts request makeup. (Maybe the fault is in thinking that experts must be asked to wear makeup!) The answer may be to have a makeup person ready and available to go in before the shoot; and to assume an "of course we are going to touch you up" attitude. But for some reason, this seems never to be done. There may be legitimate concerns about the jurors' perceptions regarding witnesses wearing makeup. But when makeup is done right, jurors will be unable to tell; and even if the jurors could, they surely would understand that makeup is done for TV all the time. Nevertheless, there is the risk that makeup could possibly hurt the credibility of the presentation. Therefore, secure the services of a true makeup professional, and handle the makeup session as unobtrusively as possible. Depositions are universally recorded in color. Still, black and white can be very attention-getting if this format is used on occasion. Black and white is a good way to break up the monotony of one color video after another in a trial. B. Dressing the Part Good colors to wear when appearing on TV are solids or large stripes or patterns of high contrast, e.g., white against navy blue or dark gray against light blue. Narrow stripes and small patterns disrupt the TV picture. White is a difficult color for the TV camera. Some cameras record white as too "hot" or bright. Remember the lesson of the 1962 Nixon-Kennedy debates. Kennedy's oxford blue shirt gave him a young, robust appearance that contrasted sharply with Nixon's too-bright, too-pale white shirt. This is not as much of a problem today with modern cameras; but it is important to remember that when picking shirts, light pink looks white; and light blue is generally more flattering than true white. Be sure and speak with your expert about his or her clothing. Do not count on your expert knowing how to dress for TV. C. Camera Angles Jurors often state they wish during a video deposition that they could see the lawyer asking the question as well as the deponent answering it. Common juror comments: "How do we know the lawyer wasn't holding up the answers?" "It's like listening to one side of a telephone conversation." "Was the lawyer being mean or making faces?" There are solutions to this problem: split screens, two cameras shooting, and/or editing the view back and forth - maybe not for every question, but for most. D. Audio Recording The recording of testimony and other sounds at a deposition is usually marginal. Do not ignore the basics. Everyone at the deposition should have a separate microphone. This rule extends to the videographer and the court reporter, even if they must speak only at such times as the swearing in of the witness, or when the parties are "going off the record.‖ The microphones should work well without feedback or squelch. They should be placed so they clearly pick up the individual speaker's testimony. A tie clip is an acceptable solution, but not the best. Women rarely wear ties, which make tie clips useless for them. The type of microphone that picks up loud, close directional sounds is better than an omni-directional microphone that picks up the phone ringing in the other office, or other incidental noises. There should be a separate audiometer for each microphone; and the lawyer, as well as the videographer, should look at the meters from time to time during the deposition. The videographer should wear a headset that transmits only the final mixed audio, not the raw input. Everyone who has a microphone must avoid whispers, muttered curses, heavy breathing, and throat clearing; all of which are greatly amplified by sensitive microphones. Remember: Do not be caught booming out in the courtroom playback that your learned opponent is a dumb jerk. 6 Only one person should speak at a time during a taped deposition; overlapping conversations are rude, and impossible for a cheap sound system to sort out. Considering manners, it is a great help to everyone to space objections so they do not overlap at all with the testimony. The reason is simple: Whether the objection is overruled or sustained, it will be deleted in the final editing of the video. If the objection overlaps testimony, then either it will be heard, or the testimony will be deleted. The mere fact that this conundrum can be used to your offensive advantage from time to time does not make it right. Playback with Impact A. Video Playback Here, the rules are simple. Use big screen monitors, the bigger the better. Two screens facing the jury are better than one. Have a separate, smaller, monitor for the judge; and one for each party if you have room. When the playback begins, be sure and get up and walk to a place where you can see the jury's monitors, then watch the testimony with them. This way they will know you are interested, and that you want to ensure they are seeing (and hearing) a good picture. Be sure and leave the courtroom lights on. Most of us are accustomed to watching TV in the daylight; plus, lights discourage napping on the job. B. Audio Playback Audio playback is often terrible in the courtroom. Courtrooms were designed for many purposes; but, incredibly, being able to adequately hear the spoken work appears not to have been one of the prime considerations. Most TVs have poor-quality speakers which project out to the sides. This does not make for good audio reception by the jurors; often they and the lawyers are in the front of the room; and there are no close walls for the sound to bounce back from. As a result, the audio waves create an echo effect; turning up the volume just makes a bad situation worse. Many juries have several older members or others who are hard of hearing; a problem sure to get worse as the rock-'n-roll-blasted baby-boomers become older. The answer is not complicated, but it does take effort and attention to get it right. Hook up separate speakers facing the jury. This requires a TV with speaker jacks, or a separate audio feed from the VCR. Stereo is better than mono; but anything is better than the TV speakers. Do not overlook the need for a place to put the speakers; most jury boxes are just that-boxes; elevated and "protected" from the rest of the courtroom by a barrier. Putting the speakers on the floor will not work. C. Stenographic Depositions for Use at Trial While video is the norm, some trial depositions are still taken down by a stenographer. The information in such a deposition is usually presented to the jury by reading it in court. This is an extremely boring way to present testimony. It is however useful when a witness has a strong accent, because his or her testimony can be read by someone without an accent. Such a reading can be made more interesting with practice, so that the words flow smoothly, and by hiring actresses or professional speakers to handle the reading. 7 V. BILL MANN’S TOP TEN WAYS FOR LAWYERS TO AVOID DISCIPLINARY PROBLEMS By William C. Mann, Esq. Over the past 14 years or so, I have served as both a ―prosecutor‖ and a ―defense counsel‖ in several legal ethics cases. Because of that experience, several lawyers have asked me to come up with a ―top ten‖ list of how attorneys can avoid legal ethics problems. Here is that list. I hope you find it helpful. 10. Assume that everything you do and say, in your professional life, will be reported on the front page of your local newspaper. Sunshine is a great disinfectant, and it tends to kill unethical and marginal behavior. 9. Work hard and work smart. Stay current on the law and make an effective effort on behalf of each of your clients. Most of them will appreciate it. 8. Be reasonably polite to everybody. People would rather not pursue disciplinary action against a nice person. 7. Never ―butt heads‖ with a client in writing. Some clients are very difficult and its is sometimes your job to ―straighten them out.‖ If you do so, use diplomatic language and avoid the harsh language that the client may well, in fact, deserve. 6. Do not ignore clients. Do your best to return all client phone calls within two business days. Do not refuse a client’s request to make an appointment to meet with you. 5. Document most of the important stuff in writing. Lawyers cannot document everything, but you should have enough written documentation in your file to show what you did and to justify why you did it. 4. Know the law of legal ethics. Lawyers are very busy, but once a year you should read the Ohio Code of Professional Responsibility from cover to cover. It takes about four hours. 3. Know the warning signs of substance abuse. If you or a partner, or associates, has a substance abuse problem, recognize it and get immediate professional help. 2. If you get into a legal ethics problem area, stay cool, stay calm and get immediate professional help. 1. Follow Rule Number Two. It really works. Visit The Virtual Home of The Franklin County Trial Lawyers Association At www.fctla.org 8 TJB’s Trial Tips VI. MAKE A CONNECTION WITH THE JURY 3 By Timothy J. Boone, Esq. Question: You know I keep getting the feeling that the jury just does not understand my client’s case. What am I doing wrong? As trial lawyers, we know that prospective jurors come to the court for jury duty with a great deal of skepticism or even cynicism. Many jurors do not trust lawyers generally or at least do not hold them in high esteem. This mistrust is reinforced by the court process that seems to pit two different versions of the same set of facts against each other. Then jurors assume, that as a trial lawyer of one of the parties, we know the real truth – therefore one of the attorneys must be lying. Another subset of jurors do not trust the court system. Either they, or someone they know, has in the past been mistreated by the court system. It may have been in traffic court or domestic relations court, but the bitter taste of a prior bad result or encounter with the courts still lingers on. Yet, another group of prospective jurors has been injured in a vehicle accident or at work, and were treated, as far as they are concerned, fairly and justly resulting in an appropriate settlement or resolution. Therefore, they do not understand why this accident case, the one you are there to present at trial, has not been resolved also. Is it because a party is demanding what they do not deserve, like the plaintiff’s in the recent obesity-food addiction cases filed against the ―fast food‖ restaurants? Or is it simply because the plaintiff does not want to take responsibility for his/her part in causing this particular collision? Or, they were a defendant in a ―minor‖ accident and the plaintiff took them to court to get money for very minor injuries, and they just believe that is totally unreasonable or insane. They lost! Each of these illustrates how difficult making a positive impression upon a jury can be. Frequently it is an absolute Herculean effort, particularly for a plaintiff’s counsel. If you are also then confronted with a trial judge that requires you to conduct voir dire of 18 prospective jurors in one hour, or give a closing argument in 15 minutes, the prospect of getting good, quality face time to change, or minimally neutralize, these negative impressions and biases that the jurors bring with them to the court, is a daunting task at best. So, how do we get a jury in this hostile environment who want to be at work, at play, at home, or with their kids, to begin to understand our case and our client’s position? What do we do? Answer: Start by making a “connection” with individual jurors at every opportunity. Of course, we cannot converse with jurors on the elevator or in the security line waiting to get into the courthouse. In addition, we have only limited information on the standard juror questionnaire. So, how do we connect with jurors without crossing the lines of inappropriate trial conduct? By following this short list of advice: (1) Listen (2) Empathize (3) Watch (4) Integrate their stories (5) Relate your case to the jurors’ current lives, stories and events (6) Think in pictures 9 What I mean by listening is just that. Stop talking! Voir dire is not a time for you to explain every theory that you contemplate bringing forth in the case. Instead, it should be a place that you ask open-ended questions and you get answers. You should smile; you should have an open stance with an open jacket that encourages the jurors to be open and candid with you. You need to share with them a little information so that they feel comfortable in sharing information with you. But what you are really trying to do is find out what is on their minds – what are their concerns – not just about your case and the problems that your case has, but what’s on their minds generally, which affect how they think about your case. You need to genuinely let them know that it is important to you, not just to your client, for them to tell you what is bothering them. With that level of sincerity, open the door, then look them in the eye and listen. Secondly, empathize with them. I do not mean a false sense of empathy; I mean sincerely reach out to them. If they have had a recent hardship, share with them a similar hardship and make them understand that you have gone through something similar and can understand. Maybe it is so tragic that you cannot understand, so admit it. Nevertheless, take the opportunity to show that you are a human being trying to connect with another human being. You do not accomplish that by speech making, using a dictatorial or condescending tone or an accusing type questioning process. This is not an interrogation or an inquisition. This is an opportunity to start sensing what kind of people are there, more importantly to have them sense what kind of person you are, and what kind of person your client is. Next, watch them. Watch their body language, watch their face, watch their hands, and watch their reaction to a question that you ask someone else. Watch them not just in voir dire, but watch them as you are questioning witnesses. When you get to the key question of a witness, ask the question to the witness and turn to the jury to watch their response to the witness’ answer. If half of them are asleep or half of them do not understand the words or a few of them frown, then you have to respond to what you have seen. You cannot simply move on and assume because it is part of the record, they ―got it‖. Look at the jury, interact with the jury, and respond appropriately to the jury. During voir dire, opening statement and sometime closing you may get a particular body language response from a juror that you are trying to convince. Mimic that body language and speak directly to them. If they frown, you frown, if they cross their arms, you cross your arms. When they open them up, you open them up. Those are ways of making a body action connection with a particular juror. It is another way of communicating. This trial that you are presenting is happening today in the lives of these jurors. It did not happen 2 or 3 or 4 years ago, it is happening now. So, this event, this trial, needs to be integrated into their lives and their stories today. That may mean, if you have listened well during voir dire, you may need to adjust your presentation, your opening statement, what witnesses say or don’t say, the style of your presentation and your closing argument to the kind and quality of jurors that you have and to the life stories that they bring to this trial. Think of it this way - if you were trying to explain the internal combustion engine to a four year old, you could not use the same thoughts, language and images as you would to a person who has a masters degree in accounting. You can use different language you can use different examples. You cannot tailor it necessarily to the weakest link and you may have to tell the story and retell it with several different examples, illustrations and analogies that will coincide with life experiences of the various jurors and then try to end with one analogy or story which holds some universal life truth to it. To ignore and fail to integrate this story into their lives today will cause failure and misunderstanding of your case. Next, you need to relate your trial and this case to the jurors’ lives, current stories and events. Try to find something that has occurred recently, has been in the news or has universally influenced a great number of people and try to either show that it is not like your client’s circumstance or that it is similar to it. In either case you are trying to allow the jury to relate this event. They can neither touch, nor smell, nor see something that they have not connected with in the past. They can connect to recent current events. As an example, to ignore the jury’s collective knowledge of the now infamous McDonald’s coffee case or the more recent obesity-food addiction case, and just ignore those cases as if they never happened when you know it is in the collective minds of the jury, is to ignore the fact that the jury lives now. They will make their decision now and you must give them the understanding that your case is, though happening then, being presented now and in the context of current events. 10 Lastly, you need to think in pictures, not in words. We know from various neuro-linguistic studies that men and women think differently and perceive information differently. Just as an example, men tend to think of only one thing at a time, whereas women are able to multitask and think of numerous things at the same time. Men, on the other hand can picture maps and drawings and twist and turn objects mentally, whereas for a woman, it is easier for them to follow directions if they use landmarks instead of distances and streets. We know that men are less emotional and women are hard wired in their minds to have more emotion and to be better able to cross over the barrier between logic and emotion easier then men can. We also know that the public receives most of their information about the world around them through a multi-sensory but mostly visual cues. We as lawyers have tried to become wordsmiths. We have spent our lives drafting briefs, pleadings, letters and contracts and other written documents. Then we speak in coded language that has legalese and non-comprehensible, multi-syllabic words like unconscionable and supercilious. For a jury trial, you need to stop thinking in words and think in pictures and sounds. That means we must present the information in a manner, which will mostly easily connect with the jury through both visual and audio means. Failure to use visual assistance that is easy to understand and is simplistic to present, causes us to lose the most basic ability to connect with the jury. Therefore, even if it is a simple drawing on a blackboard, complicate design presented by a computer projector or a blow-up of a photograph, if that can be presented simultaneously with words and sometimes without words at all, you will begin to make the connection required so that the jury will understand our clients and our cases. Think about these suggestions and I am sure you will come up with many more. But the important thing is that if we want the jury to understand our client’s case, to bring justice to our client’s cause, and to give us satisfaction that we have fully represented our client to the fullest extent possible, then we need to create opportunities to connect with each individual juror during trial as frequently as we can through every appropriate and ethical means possible. The jury process is strange enough. We cannot afford to stand separate apart from those who must judge our case and client. VII. THE “FACTS” ABOUT THE MEDICAL MALPRACTICE INSURANCE CRISIS [Editors Note: We sincerely thank the Ohio Academy of Trial Lawyers for making the following information available to us.] Medical malpractice insurance premiums are increasing nationwide because of insurers’ bad business decisions, bad investments, a faltering economy, and a minority of doctors who are responsible for a disproportionate share of the injuries and deaths suffered by patients. The insurance companies blame victims--people who have had the wrong side of the brain operated on, cancer mis-diagnosed, or been blinded by laser surgery gone wrong. Worse, they want Congress and state legislatures to respond to their problems by punishing those same innocent victims. Doctors, who do not like paying higher premiums any more than the rest of us, are mistakenly following their insurers’ lead. This medical malpractice "crisis" is nothing new. Similar insurance ―crises‖ surfaced in the mid-1970s and 1980s, when, like today, insurance company profits dropped. During these cycles, some state legislatures were pressured to restrict the legal rights of innocent victims, theoretically to bring down insurance rates. It did not work. In 1975, California enacted caps on the amount a jury could order a negligent doctor to pay patients they injure or the families of those they kill. Now, 27 years later, California doctors pay 20% more for medical malpractice coverage than the national average, according the American Medical Association's Physician Socioeconomic Statistics, 2000-2002. 11 In state after state, so-called tort ―reforms‖ have NOT resulted in the promised reduction in malpractice premiums. The facts simply do not show a relationship between a state’s liability laws and the premiums paid by its doctors. Even the American Insurance Association --echoed by the leaders of the American Tort Reform Association--admits that limiting the rights of injured people does not reduce insurance premiums: "[T]he insurance industry never promised that tort reform would achieve specific premium savings." The problem is not that injured people seek justice, and the solution is not punishing those unfortunate enough to have suffered from a medical error, as the insurance industry proposes. The problem with medical malpractice is that it occurs far too often. According to the Institute of Medicine's 1999 report, up to 98,000 patients die in U.S. hospitals each year as a result of preventable medical errors. Malpractice is America’s eighth leading cause of death, killing more than breast cancer or automobile crashes. Most injured patients and their survivors never learn that they or their loved ones were victims of medical malpractice. Only one out of eight instances of malpractice results in a claim, according to a report by a Harvard Medical Practice Study Group. In studies done in other states, it becomes evident that a relatively small number of doctors commit a comparatively high percentage of the malpractice. A West Virginia Sunday Gazette-Mail investigation revealed that just 40 doctors were responsible for more than one-fourth of the 2,300 cases of medical malpractice reported to the state's Board of Medicine between 1993 and 2001. Analysis of medical negligence records found that, from 1992 to 2001, only 16 percent of Kentucky’s doctors were responsible for 100 percent of the medical malpractice there. These states are not unique. One would think the health care profession and its insurers would weed out the repeat offenders. Or at a minimum, devote their political time, energy and money to finding ways to reduce the incidents of medical error. Not so. Instead, they choose to take away rights from the people they injure. So why a medical malpractice ―crisis" now? Just like in the '70's and 80's, the economy has recently declined. Insurance company profits--mostly from investments--suffer from bad business decisions. St. Paul Insurance Co., for example, announced it was leaving the malpractice insurance business, claiming malpractice verdicts were a problem, but failed to mention it lost $108 million in the Enron debacle. Insurers also play numbers games with rates. "As the economy enjoyed a magic carpet ride in the 1990s, insurers kept rates artificially low because they earned more money investing than by writing policies," concluded Medical Liability Monitor editor Carol Brierly Golin. And what about claims that rising malpractice premiums force doctors to quit the profession or move out of state? A Philadelphia Inquirer investigation found no such trend in Pennsylvania. Nor has it been proven true in West Virginia, New York, Mississippi, Nevada, Texas or other states where the claim has been made. The negligence of some doctors and the bad business decisions of most insurance companies are not the fault of patients who are mistreated. Yet it is injured patients who will be punished if insurers and doctors succeed in limiting justice. Related Facts & Figures th The Institute of Medicine reports that medical malpractice is the 8 leading cause of death, killing more people than AIDS, breast cancer and auto accidents. Up to 98,000 patients die annually as a result of preventable medical error—268 deaths per day. 12 Victims of malpractice often suffer catastrophic damages costing hundreds of thousands or millions of dollars over their lifetime, including 24-hour nursing care, specially equipped homes and cars, additional surgeries and years of expensive rehabilitation. A Harvard Medical Practice Study Group report found that only 1 in 8 instances of malpractice resulted in a claim. Medical malpractice litigation makes up about one-half of one percent of our nation’s total health care bill. An April, 2002 study by Price-Waterhouse-Coopers said health care insurance costs went up 13.7% last year. Of that increase, 7% was due to litigation and risk management (including med mal premiums). That means litigation costs account for only about 1% of total health insurance premiums. According to Medical Economics Magazine (2001), ―It’s the insurance companies themselves that share culpability because they kept premiums artificially low for years. They either miscalculated how much money they’d need to pay future claims, or they engaged in low-ball price competition to win market share…‖. The International Risk Management Institute said last December, ―Insurers were on a quest for market share. They were driven more by the amount of premium they could book rather than the adequacy of the premiums to pay losses.‖ California did what the doctors asked in 1975—enacted punishing tort ―reform.‖ Medical malpractice premiums increased by 190% in the next 12 years. Today California doctors’ premiums are 20% higher than the national average. In 1975, the Texas legislature passed sweeping laws limiting the rights of the injured, hoping to reduce insurance costs. Today, Texas doctors are threatening to leave the state because their malpractice costs have gone up so much. Indiana is often cited by tort ―reformers‖ as a model. Doctors there are being hit with a 40% jump in malpractice premiums this year. According to the Medical Liability Monitor, internal medicine doctors in states with caps on damages paid $7,887 for malpractice insurance in 2001, while doctors in states with no caps paid $7,715. Likewise, general surgeons in states with caps paid on average $26,746, and in states without caps, $26,144. VII. ANNOUNCEMENTS and EVENTS Special Announcement! th Stanley M. Chesley, Esq. to speak at the Sept. 17 FCTLA Meeting. We are privileged and honored to present our nation's foremost class action litigator, Stanley M. Chesley, th as our keynote speaker for our September 17 dinner meeting to be held at 5:00 p.m. at the River Club, 679 West Long Street. Without question Mr. Chesley is handling or has been on the litigation steering committees for many of the most famous, significant cases of modern legal times. To name a few - Baycol, Sulzer Hip Prosthesis, Microsoft, Castana Tobacco, Diet Drugs (Phentermine, Fenfluramine, and Dexfenfluramine), C/C Heart Valve, Tetegronics Pacing Systems (defective pacemakers), Shell Oil, AK Steel Explosion, Proctor & Gamble, US Air Flight #427 Air crash Disaster, Silicone Gel Breast Implants, Pan Am Air crash at Lockerbie, Fernald Nuclear Power Plant, L-Trypotophan, Agent Orange, Benedectin Products, Beverly Hills Supper Club. 13 Mr. Chesley, the recipient of numerous regional and national awards, will discuss the future of tort litigation, primarily focusing on mass torts. Mr. Chesley's discussion and insight undoubtedly will be extremely meaningful and helpful to all of our members. Due to his national and international prominence, we ask that you and your guest RSVP immediately, in order that we can obtain appropriate seating. We expect to have a capacity crowd at this exciting event. FCTLA Is The Best Local Trial Bar In Ohio th On April 19 , 2002, at the annual convention of the Ohio Academy of Trial Lawyers, Bill Mann, FCTLA President, accepted the OATL award designating and recognizing the Franklin County Trial Lawyers Association as ―The Best Local Trial Bar In Ohio." Bill Mann attributes this award to the hard work, dedication and teamwork of a great board of trustees, a great staff and wonderful active members who care about the organization and the clients they represent. Your Association: Cost Efficient Each year, the FCTLA leadership is charged with providing the best member services possible, at the lowest practicable cost. For several years, the FCTLA has provided Quarterly Comment both on-line and by regular mail. For those members who prefer receiving a hard copy of the newsletter, we will continue to provide Quarterly Comment by regular mail. Moreover, each issue of Quarterly Comment will contain an updated schedule of all events—including monthly meetings, judicial receptions, and special seminars. Upon receiving the newsletter, we encourage you to contact Tom King and to make your reservation for these events. To avoid duplication, and to be as cost-effective and efficient as possible, we will no longer provide notice of the monthly meetings by regular mail. We trust you will appreciate our efforts to minimize costs. FCTLA Board Considering Changes In Fees The Board of Trustees of the FCTLA, in order to defray some of the costs of presenting CLE at dinner meetings, speakers expenses and costs of meals, are considering charging regular, sustaining and student members from $5 to $10 for lunch/dinner meetings in the future. The Board welcomes your comments on these charges. Please send your thoughts via email to email@example.com, or via snail mail to Franklin County Trial Lawyers Association, 37 W. Broad Street, Columbus, Ohio 43215. Coming Events of FCTLA th On Tuesday, October 15 , the Franklin County Trial Lawyers will host their Annual Judicial Reception at the River Club after normal working hours. We invite all judges to mark their calendar and plan to attend this function. It’s the best way for all of us to get to know one another better. th On Tuesday, November 19 at our noon luncheon meeting Ed Lazarus, the Director of State Affairs for the Association of Trial Lawyers of America., will make a presentation to our members. th On Wednesday, December 11 from 1:00 to 3:30 p.m., the FCTLA will host the annual Ethics, Substance Abuse and Professionalism seminar. This is your ―one stop shopping‖ for all those required parts of your CLE. Take advantage, particularly if your name is in the last half of the alphabet and your requirements are due this year. st Then on Tuesday, January 21 from 1:00 to 5:00 FCTLA will hold there ―Members Only‖ seminar, where all the secrets of the profession are shared and discussed. These are but a few of the activities planned for this year. We look forward to seeing you at each and every one. 14 If you live outside of Franklin County and the contiguous counties, you can join FCTLA as an associate member, receive all the benefits of membership including use of the deposition, decision and brief banks, and receive this Quarterly Comment newsletter, all at a substantially reduced rate. Call the FCTLA today at (614) 228-1017 or email firstname.lastname@example.org for details! CONTRIBUTORS: 1 William C. Mann, Esq. is the immediate past president of the Franklin County Trial Lawyers Association, is a twenty-three year veteran trial lawyer, and is a frequent speaker for the Ohio State Bar CLE Institute. Mr. Mann is also a member of the Ohio State Bar Association’s Legal Ethics and Professional Conduct Committee and is a member of the Supreme Court of Ohio’s Commission on Professionalism. He can be contacted at email@example.com. 2 Jeffrey D. Boyd is a former President of the Franklin County Trial Lawyers Association, former editor of the Ohio Trial and an active member of the Ohio Academy of Trial Lawyers. He is an experienced trial lawyer and has spoken on many occasions regarding the art of trial advocacy. You may contact him at firstname.lastname@example.org. 3 Timothy J. Boone is a Trustee of the Franklin County Trial Lawyers Association and has been a trial lawyer for twenty-five years handling products liability, medical negligence, personal injury and business litigation. He has also been an Adjunct Professor of law at Capital University Law School since 1991 teaching courses in basic Trial Advocacy skills and Advanced Trial Advocacy [The Art of Persuasion]. He is frequently called upon to make presentations throughout the state on trial related topics for the Ohio State Bar CLE Institute, Ohio Academy of Trial Lawyers, National Business Institute, Inc., and the Columbus Bar Association. He is co-author of “The Essential Techniques Involved in a Jury Trial” (NBI, 1996). He is also a member of Boone, Smith & Associates, LLC. If you have a question you would like addressed in the next issue of Quarterly Comment, send it via e-mail to: email@example.com.