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Monday, February 15, 2010

Being sued v. being held liable

One of the biggest popular/public/lay misperceptions of the legal system is a failure to grasp the difference between being sued and being held liable. The belief is that if I do everything "right," then I won't be sued at all (not just that I won't be held liable in the end). And the belief is that being sued is a tragedy, just as bad and just as telling as being held liable. Two recent examples--one real, one from popular culture (which, for better or worse, is responsible for much of the popular understanding of the legal system).

Popular Culture

On a recent episode of "Grey's Anatomy," a patient wakes up from anesthesia while still on the operating table. The new chief of staff/surgery immediately panics that the patient is going to sue and begins trying to figure out how to keep that from happening. Fortunately, the doctors discover that she woke up because of a medical condition that threw off the equation of anesthesia; she agrees to complete her surgery and not to sue.

But of course the hospital is going to be sued; hospitals get sued all the time. And the head of a major hospital would know this (probably because he spoke with a lawyer, not to mention experience). And the discovery that the patient's medical condition caused the problem would not preclude the suit--it might get them out of liabilty and perhaps even at an early stage. But that is why we litigate. And that is why most cases settle in any event. By the way, "Grey's Anatomy" is not alone; just about every medical show presents being sued for malpractice (regardless of the outcome of the case) as a major knock against the doctor/provider's medical ability. Being sued, by itself, is the story.

Real World

A couple weeks ago, my wife, who is interim coordinator of the internship program at FIU's School of Social Word, conducted training for the internship field instructors (the in-placement supervisors). One of the modules was on legal issues surrounding social-work practice--what they can do to protect themselves, how to document treatment, how to document incidents, etc. She received a number of questions from incredulous instructors who seemed shocked that, even if they did all that, they might still be sued and might have to defend (even by simply filing a motion to dismiss). The impression seemed to be that the judge, upon seeing that the social worker had done everything "right," would simply throw the case out. There was no understanding that the parties had to argue these issues to the court, which meant appearing, hiring an attorney, and defending. Nor was there an understanding that whether the person "did everything right" ultimately was determined by the neutral arbiter (judge or jury). So while a person believes he did everything right, that arbiter may disagree.

I am not trying to minimize the burden of having to litigate. It is expensive and extremely frightening, at least for individuals (far less so for major institutions). And perhaps it is simply an extension of how people would feel about being a criminal defendant (when they can insist they did "nothing wrong") or the public's attitude that an acquittal (or a finding of non-liability) simply means the defendant "got away with one."

What is perhaps more troubling is that our students come to law school with this attitude and perception. And getting them away from that view is not easy.

Posted by Howard Wasserman on February 15, 2010 at 08:20 AM in Culture, Howard Wasserman | Permalink


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Doctors really do fear the event of "being sued" and feel that the lay public should not have the right to file law suits against them. That's why no amount of "reform" consistent with our current system of government will ever satisfy the medical community. In fairness to them, the mere fact of "being sued" does trigger a lot of angst and actual inconvenience. Remember that they are highly unlikely ever to pay out of pocket so the "stigma" and the "inconvenience" of being sued are substantial even if they are eventually found not liable.

Posted by: Jennifer Bard | Feb 24, 2010 2:29:12 AM

Don't people often use "being sued" as a short-hand for "being sued non-frivolously" ie "incurring a significant risk of being held liable"? That seems to be how it was used in Grey's Anatomy.

Posted by: AF | Feb 16, 2010 1:54:56 PM

Clients ask for documents and approaches tht will prevent them from being sued all the time. I always have to tell them that this isn't possible, that anyone with a word processor and a filing fee can sue.

This said, clients are not irrational in their fear of being sued. Medical malpractice cases are particularly likely to produce expensive litigation but no judgment against the defendant. The same thing happens in civil rights case. Jefferson County, Colorado for example, recently lost a First Amendment case. The money damages judgment was for $1,791. The attorney's fees judgment will likely cost $1 million, half their's and half the prevailing plaintiff's.

The strategies that prevent you from being sued (e.g. creating the perception that lawsuits are futile, apologizing, paying pre-judgment settlements, not driving hard bargains and compromising) are also very different from the strategies that lead to prevailing if a suit is commenced. Indeed, often, as in the case of an apology, they may be diametrically opposed.

Posted by: ohwilleke | Feb 15, 2010 3:04:11 PM

It seems to me that the interesting question here is how this set of preconceptions differs, if at all, from the dynamics of blame in our culture more generally.

A lawsuit is, for most people not twisted by overexposure to our legal system, about blame. The plaintiff blames the defendant for something, and virtually every cause of action involves a duty (what you should do) and its breach (you didn't do it). Our system posits sanctions for starting an action--asserting blame--without some colorable basis, e.g., Rule 11; the tort of malicious prosecution. These present low thresholds to be sure, but all with the moral underpinnings of "don't blame somebody for something unless you've got the stuff to back it up." (And, interestingly, note how different the ground rules are for defending yourself. There is no tort of malicious defense.)

Blaming someone for something publicly is a serious thing. Just think of how surprised, upset and defensive you feel if someone accosts you at Starbucks and announces that you just cut in line.

With various caveats and perhaps a general reservation about rushing to judgment, we also generally assume that people don't make accusations of any kind without some colorable basis for doing so, even though daily experience provides counterexamples without number. These somehow prove the rule by exciting our outrage at levelling a false accusation, however trivial: exCUSE me, I was standing here in line when I saw you walk in the door over there.

Law students walk into torts class lay people. Small wonder they share the general culture's views about the dynamics of blame and vindication as they play out in the very public forum of litigation. The dissection of claim from liability (with all the slips between the cup of one and the lip of the other) is one of the innumerable counterintuitive wisdoms we internalize in learning to think like a lawyer.

And by the way, a principal challenge of the trial lawyer is learning to think like a person again.

(The writer is a longtime practitioner who is transitioning into law teaching. He welcomes your thoughts, and any news of available positions. References available on request.)

Posted by: Bernie Burk | Feb 15, 2010 2:10:01 PM

While I agree with the distinction, it's certainly muddied by insurance practices--which often don't draw enough of a distinction. For example, many malpractice insurers will increase premiums--ore even drop coverage--based on the number of suits a doctor faces--regardless of outcome. This makes some sense from the actuarial perspective, because even frivolous claims cost money; but it also exacerbates the problems of defensive medicine--which is where the fear of "suit" presents the greatest harm...

Posted by: anon | Feb 15, 2010 11:13:14 AM

I occasionally try to make this point by observing that you could get sued for making the moon explode. It will get dismissed, and the other side might well be sanctioned, but the complaint will be accepted for filing.

Posted by: Bruce Boyden | Feb 15, 2010 10:52:48 AM

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