Are You A Sharpie Or A Mullet?
Over 35 years ago when I started court reporting school in Houston, a professor from the University of Houston Law Center came over and taught us a rudimentary course on law so that we would not take our Perry Mason belief system into the courtroom with us upon graduation. It embarrasses me to admit that due to my advanced age (LOL) I have forgotten his name and have been unable to find him through the Internet in order to give him proper credit for his sharpie and mullet analogy. But if you’re out there Professor, thank you for this knowledge. When we moved from the study of criminal law, where only official reporters work, into civil law, where both official and freelance reporters work, he told us that the world was divided into two groups: sharpies and mullets. He went on to explain that in spite of our egos telling us otherwise, the vast majority of us are mullets. While I hate to think of myself as being a mullet, all too often in life since then I have awakened to find that, indeed, I have been feasted upon by a sharpie.
The analogy goes like this. There are the sharpies of the world who prey upon the mullets by unfair business practices and outright fraud, and the only real recourse that the mullets have is to go out and hire their own sharpie—this would be a plaintiff’s attorney—in order to get back that which was stolen. This is the basis of “tort law.” You injure me in some way, physically, financially, socially or mentally, and I sue you to get compensation for my “damages.” The old model for business practices that I always heard in my growing up years was, “Let the buyer beware.” That was it. If you got taken by someone, it was your fault for letting it happen. But despite the desires of “strict constructionists,” societies evolve and their legal needs evolve with them. After the financial carnage caused by the robber barons of the late 19th century, the courts and slowly the government responded to the robbing of everyday citizens by beginning to hold the rich and powerful more accountable for their actions. Then came the Wall Street crash of 1929, which plunged the nation and the world into a financial hole that we seem to be mirroring today. Greed and unreasonable expectations of the bankers and the investor class have now led us to the same precipice. And like 1929 the response of the guilty parties is, “We can handle this ourselves, so get out of our business,” ignoring the fact that their “business” is all over our business.
In much the same vein, the big insurance companies of the U.S. are pulling no punches to keep the government out of their lucrative business. “Let the buyer beware,” they shout. “We have the greatest health care system in the world,” they warn. And then they slip in the little booby trap that they want to hide under the roadway: tort reform. Now, much is made of the “frivolous” medical malpractice lawsuits that are filed “every day” in our court systems. What is not made much of is the fact that the refusal of the malpractice insurance carriers to come honestly and reasonably to the table and compensate patients who have indeed been injured by a doctor’s all-too-human mistake is the cause of disputes coming to court in the first place. Come on, we all make mistakes. That is one of the reasons that we carry liability auto insurance, so that our all-too-human mistake doesn’t bankrupt someone that was injured in our accident. The auto insurance industry pelts us with never-ending ads about being in good hands with our good neighbor who will save us money as well as peace of mind when we take to the road. Yet the selfsame companies, over in their medical malpractice divisions, pelt their customers, doctors, with a barrage of scare tactics about how patients and lawyers are out to get them. No offer of peace of mind there.
What’s the game? It’s the sharpies, dear mullets, doing what they do to manipulate everyone to give them what they want: a limit to their liabilities on all claims. That’s right. ALL CLAIMS! A few years ago when the insurance companies successfully campaigned for and won a “tort reform” constitutional amendment in an off-off-year election here in Texas, they ran countess ads on TV about how difficult it was for pregnant Texas women to get an OB-GYN because they were all leaving the field due to high malpractice insurance premiums. Well, this was big winner here in “family values” Texas. There was hardly a breath of opposition as their rescue of OB-GYNs also rescued the insurance carriers from all sorts of punitive damages assessed by Texas juries.
What are “punitive damages,” many of you will ask. They are an assessment of monetary punishment for bad faith performance by a person or company who knowingly causes damages and doesn’t seem to care. Many years ago in Corpus Christi, TX, I worked on a case that I think of as the poster child of the need for punitive damages. One evening a couple of beautiful 19-year-old girls were returning from Corpus Christi to their homes in the suburb of Calallen, Texas, in their late-model American-made sub-compact car. One of them spilled her soft drink, and they pulled over to the improved shoulder of the two-lane street they were on to clean up the mess. Unfortunately, while tending to their clean-up, a drunk driver in a luxury sedan, mistaking their taillights for those of a moving vehicle plowed into the rear end of the smaller car, curling the rear-end of the car up over the passenger compartment, exploding the gas tank, and raining the flaming gasoline down on the girls, burning one to death on the spot and burning the other one so severely that she lay in a local hospital for a week before succumbing to her own injuries.
Now, this may seem like a simple drunk-driver-hits-and-kills-someone scenario to many, and he got sent to prison for a long time for his actions. But there was another actor in this case, the auto manufacturer. Without naming names, there was widespread knowledge among the people and many news reports about the propensity of a certain model of car made by a certain American automobile manufacturer to blow up when hit from behind. What came out in the investigation of this case by attorneys hired by the girls’ families was startling. First, all models of that manufacturer’s cars had the same design flaw and were in danger of blowing up as a result of a rear impact. Second, in the course of getting records from the files of the auto maker, a damning set of memoranda were found. The memoranda were between the board of directors, the engineering department, and the legal department. In the end they showed that the engineering department estimated that it would cost $125 million to perform a recall and fix the defect, and the legal department assured the board of directors that they could defend any lawsuits against them for less than $125 million. The board of directors, acting on this advice, refused to recall the defective vehicles. In other words, they decided to weigh their monetary loss against the loss of life that might result from their negligent design, and like most big business, they chose the bottom line.
When the jury of 12 ordinary people in a Corpus Christi courtroom came back with their verdict, they sent a strong message to the auto maker: Not to our children in our community. They assessed punitive damages in the amount of $126 million dollars against the auto maker. The verdict was breathtaking in its size, but it told the corporation’s board of directors that life is more important than money and expressed what I consider to be the legitimate outrage of everyday people that a big American corporation that we trust with our lives and safety everyday could act so cavalierly. During the resulting appeal process, the auto maker settled for about half of that punitive damage assessment, but still never ordered a recall on the faulty vehicles. In case you’re wondering what the defect was, it was very simple. The mounting bolts for the rear bumper, which were long and unprotected on the back, were pushed into the gas tank upon impact causing a metal-on-metal spark and igniting the gasoline inside. KABOOM!
Of course the insurance industry has been in a state of outrage ever since this happened and fought long and hard to get laws changed to protect them from similar outcomes, regardless of the actions of their clients. And of course, with the other hand they have raised the premiums in response to jury verdicts, keeping their bottom line virtually unchanged. That brings me to another case that is not about punitive damages, but just everyday people being denied compensation from their insurance company after faithfully paying their premiums for years.
This case was reported by me in Federal Court in Oxford, Mississippi. During the recession of the late 1970’s Mississippi residents were hit hard. A working family from Oxford lost their jobs and decided the only way to hang onto everything they owned was to come down to Baytown, Texas, and work in an oil refinery until things turned around back home. The husband and wife as well as their son worked at the refinery in Texas to make ends meet, trying to maintain their mortgage and insurance payments on their home in Mississippi, while paying rent down here. One week night, their Oxford home burned to the ground. They made a claim on their home-owners policy and were denied by their insurance company, a big national company which will remain nameless. In order to collect on the insurance policy they had paid all along, they had to sue in Federal Court because the insurance company’s headquarters were out of state.
I met these folks and the attorneys for both sides when I was employed on a freelance basis to go report the trial in Oxford. It seemed pretty cut and dried to me, but this is the week I learned how important a good lawyer can be. The attorney for the insurance company was from a big Atlanta, Georgia firm, and he was impressive in every possible way. He dressed in the most expensive suits, had an impressive movie-star quality smile, and was, no doubt about it, a very expensive, very excellent attorney. The poor blue-collar family from Oxford were represented by an older gentleman from the community who was in no way up to the task against the powerful and slick—yes, I said slick—opponent that he faced. As the evidence was presented, nothing came out that sent up any red flags about the family’s reputation. They were salt of the earth types, never had any brushes with the law, what we used to call “poor but proud” in my childhood days. They were also what is called “good Christians” by their friends and neighbors. They bought insurance, paid the premiums, their house burned down, case closed.
Then Mr. Atlanta took the reins of the courtroom, and while never producing a single witness to corroborate his “theory” of the case, he began weaving in his questions a scenario where the family came from Baytown, Texas in the night and burned their house down. Despite the fact that time cards were produced showing them clocking out the evening of the fire and clocking back in on the morning after, Mr. Atlanta kept planting the seeds of arson in the jury’s minds. Since I lived in Mississippi at the time and had family in the Houston area that I visited, I knew that such a thing would be impossible, and expected the lawyer for the family to point this out, but he didn’t. After Mr. Atlanta argued in his closing that he believed the family had clandestinely returned in the night and burned their house down for the insurance money—which is perfectly legal for him to say in closing arguments, which are not considered “evidence”—the jury quickly returned a verdict in favor of the insurance company, leaving the family totally uncompensated for their loss.
I was outraged. As a court reporter, it would be unethical for me to tell the lawyer for the family what I knew about the driving time between Oxford and Baytown, or betray my feelings in the courtroom, so I kept my head down until I got back to the privacy of the staff offices. Once there, thinking I was out of public view, I ranted to the court clerk about my outrage at the miscarriage of justice I had just witnessed. Much to my embarrassment, she looked over my shoulder when I was finishing my rant, and I turned to realize that Mr. Atlanta was standing right behind me the whole time. He simply smiled at my naive, young face, and said, “It’s my job to make ‘em work for it.” He then turned and left. I realized that he was right, but the situation was in no way right. In an interesting after note to the incident, there was a clause in the insurance policy that protected the bank/mortgage holder against loss under any circumstances, so they were compensated for their loss, but the nice, hard-working family had lost their home and their possessions to a fire and then been cheated by their insurance company.
In one last example, I go back to Corpus Christi, Texas, where I reported a trial of a medical malpractice case. A young Hispanic father of four was taken to the hospital for an emergency appendectomy. A local general surgeon performed the surgery, and after a few days in the hospital, and despite complaints of pain, the man was released to go home on a Friday. During the weekend his pain worsened, and his young wife called the doctor on several occasions to see what could be done. The surgeon initially told her to give him some aspirin, which she did. However, over the weekend, the pain became more and more severe. The wife called the doctor’s service several more times, and he returned the first of her calls and dismissed the patient’s pain. As the man’s pain became more and more excruciating , she continued to call the doctor’s office, getting his service where he had left a message for her to “just give it some time.” Exercising amazing patience, the wife waited until Monday afternoon to call the doctor’s office to report that her husband was literally doubled over with pain in his abdominal region. The doctor, by his own admission from the witness stand, had lost all patience with the woman and told her to take her husband to the emergency room and quit calling him.
That evening, upon returning to the ER at the hospital where the initial surgery had been performed, the man was observed to be doubled over in extreme unmanageable pain and upon examination was diagnosed to be suffering from necrotizing fasciitis at the surgical incision. Most folks, myself included before this case, have never heard of this little “bug” (typically Group A streptococcus) that lives in hospital operating rooms, but it is literally a killer. It eats away at the fascia level of skin (that’s underneath what’s visible to the eye), and at least back then was incurable. The young father of four died within 24 hours of his re-admission to the hospital.
Before the case came to trial, the hospital had already settled with the family for an undisclosed amount. For his part, the surgeon claimed no responsibility for the infection, and on the witness stand testifying for himself he was one of the coldest witnesses I have ever encountered. It was quickly apparent that he possessed no bedside manner whatsoever, and expressed not one whit of sympathy for the patient or his wife and children. Expert medical testimony presented by his attorney asserted that it was the hospital’s fault for not having a clean enough operating room, and that nothing the surgeon could have done would have saved the man’s life. While I agreed with the expert’s assessment of the case, I felt that the surgeon would be harshly dealt with by the jury. I, myself, thought the surgeon was a cold, unsympathetic, arrogant bastard. But the jury came to the right decision and found in his favor. In exit interviews, they expressed their disdain for the doctor, but agreed that it was not his fault.
This verdict does not mean that the suit filed by the family was frivolous. They had every right to question the surgeon’s culpability in the loss of their loved one, as does every other citizen in this country. The only way that the family could access the doctor’s records was to file a lawsuit, and had the surgeon’s insurance carrier settled the claim, the surgeon could have been spared being exposed as the heartless person that he was. I know that the next time I visited my family doctor, a man I trusted with my life, and a man with an excellent bedside manner, I instructed him to NOT under any circumstances allow the said surgeon to operate on me if the need should arise. My doctor assured me that he was both a competent and reliable surgeon, but to me his lack of any semblance of bedside manner ruled him out forever. I expect that most of the jurors and others who witnessed his testimony expressed similar opinions to their families and doctors. And as for the surgeon’s feelings about being hauled into court to answer for his actions, I have no sympathy for him whatsoever. He was cold and condescending to a poor woman who was trying to take care of her husband and the father of her children. So, to me, despite his lack of “malpractice,” he deserved what he got, a public exposure of his true character.
These cases are the most illustrative of those I saw from the court reporter’s chair over the years. There were many more. As a freelance reporter most of my career, I worked for attorneys on both sides of the docket. A good lawyer is worth his weight in gold, and a bad one should be run out of the profession, and sometimes they are. Local and state bar associations have the ability to suspend or revoke the license of attorneys who commit malpractice or unethically take advantage of their clients. I also have been the court reporter for such proceedings. These proceedings are held behind closed doors, but as the only outsider in the room, I can assure those who do not know, attorneys are very hard on each other in these meetings. They enforce their ethics to the greatest extent allowable.
So, why do we need tort reform? My view is that we don’t. A very nice doctor visited my site recently, and we have exchanged comments back and forth and I have visited his blog site. He asserts that much money is being wasted on “preventative medicine” to combat possible malpractice lawsuits. I agree. But I remember that every time I got out my Stenograph machine and went to work, I realized that the rights and liberties of others were literally in my hands. It was a great deal of pressure, and I felt it every day. But, as I told my students in the 14 years I taught court reporting, “That’s why we make the big bucks.” All professionals feel the pressures of their jobs, because they are doing important things that affect the lives of others. That’s why the educational requirements are so high and so many fail to make it through the educational process into the field. None of us would want to think that our doctor had graduated with a C-minus grade point average. The same is true for all professionals. Their training is rigorous and demanding so that they can learn to cope with the pressures they will face. But in the end, they, like the rest of us, are mere mortal human beings, and they are going to make mistakes. When in the jury box, we should remember that and be fair to them. I have seen this to be the case a great deal more often than not.
But the last thing any professional needs is some megalithic insurance company looking over his shoulder telling him how to do his job. The insurance companies of America should be ashamed of themselves for offering a product designed to relieve the stress of life, and then turning it into a weapon to scare up support for their refusal to do what they advertise they will do. It’s time for everybody to recognize that insurance companies are sharpies, and they are treating the rest of us like a bunch of mullets. For those of you who live in fear of malpractice lawsuits despite your best efforts, do your best, pay your premiums, turn off the noise and be happy. Pretend you’re in a convertible driving down a country road with the top down, oblivious to the fact that an expensive prize bull may be waiting around the next curve. If he’s there and you hit him, if he don’t kill you, you will kill him, and the rancher will expect your car insurance company to pay for his damages. But that’s only a maybe. Don’t let it ruin your drive.
Don’t let Big Insurance use you like a mullet to advance their agenda to deny health care insurance to those they want to exclude due to the bottom line. Don’t worry; be happy!
Thanks for hanging in there with me so long today.
I’m Jack, I am who I am, and I’m Hitting Back!
With Liberty and Justice for ALL!