Legal Commentary

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.