Article: Send Lawyers, Guns, and Money

[HowardE]

You're welcome.

 

[Dr. Lecter]

What a choice: conspiracy theory-lite over what gets posted where on a free online forum, versus obsequious pedantry in defense of another who needs no defending. I say a plague o' both your houses.

 

[Abdullah]

obsequious pedantry - How often do you see that in a sentence?

 

[dumpsterDiver]

Interesting article. He forgot to emphasize one thing... at the end when he says write everything down, take pictures, video etc. It is very. very important to write everything down immediately (or as soon as possible). After a tragedy you will talk to many people and the "story" will be told over and over and different people will tell different parts. As the months go by, the story "drifts" not because you intend to mislead anyone, but your actual recollection of details and sequences and reasons for certain actions, and your assumptions at the time, will all be "colored" by the passage of time, reflection, possibly information from others.. etc....

I don't mean to imply that you will be changing the story to fit cover your asssss at all. So it is important to write a chronology and factual report ASAP. The police, investigators etc. will all ask you questions, but often they are stupid, ignorant or irrelevant questions that may not capture the relevant details of the situation, plus they may get the facts wrong as they write them down. I have seen the benefit of getting a detailed narrative down on paper. We even had 3-4 guys all sign it after WE wrote it on the day of the accident.

it is important to write down as many details as you can too. Because there may be facts about things that happened before the accident that appear to be irrelevant (and they may well be), but the atty can lie and twist and make up stories, and these "irrelevant" facts may become relevant to refute some BS that someone else puts forth. It may even be beneficial to demonstrate that some third party is being dishonest or is even incorrect.

I have seen people try to enter into the police record lies to cover their own ass about "other" questionable stuff they were doing on the same day. As the author mentions, the more FACTs you have the better. but 6-13 months don the road, you are NOT going to remember some of these details, especially if you know they are irrelevant, but some atty is trying to make them appear relevant. Capture the truth and the facts, and don't lie to the investigators, even a little.

Copy down all the info from your own dive computer on any dives from that trip, either before or after the accident. etc..

 

[rhwestfall]

obsequious pedantry - How often do you see that in a sentence?

.....and know what it means....

 

[gypsyjim]

obsequious ‎marked by or exhibiting a fawning attentiveness.

pedant is a person who is excessively concerned with formalism and precision, ...pedantic definition

Sounds a lot like a bunch of $5 words thrown into a local diner sort of conversation

 

[BVickery]

Mmm, delicious torte.

I'll preface my only other remark with an acknowledgment that while I really like diving, especially deep wrecks, my profession is litigation generally and financial institutions’ criminal defense/investigation more specifically. While I have nothing but respect for Chatterton's ability as a diver generally and admiration for his approach to deep wreck diving specifically, the article reaffirms the basic truth of the old saying "let the shoemaker stick to his last!”

Nothing about litigation is as badly unfair as this article makes it out to be, and if the author prefers a 'loser pays' legal system, leaving America and returning to the Crown is always his option. And in an echo of the Carlin quote above, the people to blame for this kind of potential liability are neither the lawyers, nor the judges, nor the plaintiffs: the ones to blame are the mouth-breathers on the juries that have kept voting in favor of expanded liability for stuff nobody but the poor sod who died should be left holding the bag for.

The thing is there has to be some reform since so many people are looking for the HUGE payday for sometimes their own recklessness and stupidity. Some things at reform would be a cap on awards. CA did something like this in regards to medical malpractice and as such cost of medical service went down (because doctor's didn't have to pay such high premiums to cover such exorbitant awards). If it is clearly a frivolous suite and the defender wins it should be within the judges decision to award legal fees to the defendant. Otherwise, the court of law doesn't come a symbol of justice but more towards another tool of bullying/scamming.

 

[Darnold9999]

First - a caveat or two - I am Canadian so have no real knowledge of the Americal legal system. Second I am a lawyer, but never practiced after getting called to the bar.

However, I know a lot of lawyers. I have taught several hundred of them, provided consulting services to an even larger number and been part of a team that has had several disbarred (had their license to practice taken away). I have worked closely with them in the privacy of their offices. I spent my entire career dealing with the legal profession. The conclusion I arrived at is that the vast majority of them were people, with the same foibles as pretty much any other group of people you might come into contact with.

There are lawyers out there that are not nice, there are some that are very hard to deal with and are over zealous, some are quite capable of gaming the system for their own benefit, but very few of them are stupid, and those tend not to last very long at all.

You would have to be stupid to take a case that had absolutely no chance of success (as described in the article) forward to a trial that was going to last many weeks.

We are not getting all the facts here.

In particular if finding the waiver valid or invalid was critical to both sides then I suspect that there was something that but for the waiver would have been actionable.

Did a research paper on waivers for the local government when the ski industry wanted to be allowed to create a waiver that absolved them of any liability for anything they might do that might injure a customer including their own negligent and grossly negligent behaviour. The (very) short version of the paper is that allowing an industry to contract out of gross negligence is a bad idea from a public safety perspective. Leads to that industry to become very unconcerned about customer safety and creates practices that are pretty much guaranteed to create fatalities. May or may not apply in the specific facts of this incident but the general observation stands. Note that the paper did canvas personal responsibility and engaging in inherantly dangerous activities, but did conclude that if you are going to provide facilities and profit from people doing that dangerous activity that it was reasonable for the courts to ensure that you take resposibility for those facilities.

It sounds like the correct result was obtained, but it also sounds like there was a serious question to be considered. That it was very difficult for one person to deal with is one of the very unfortunate side effects of the current legal system. Unfortunately there really isn't a better one.

But for that legal system you would have no recourse against the manufacturer if you found a snail in your soft drink after drinking half the bottle. You would only be able to sue the corner store that sold it to you. Creates much safer manufacturing processes.

In Canada we do have caps on personal injury awards and losers of truly frivilous litigation can pay a significant penalty, but it is still difficult for all concerned to be involved in any litigation.

 

[TSandM]

I read a report of the ending of the lawsuit, and my heart went out to Mr. Kohler. We really have fostered a system that rewards filing suit against everybody possible -- simply because the costs of defending a lawsuit are SO high that the insurance companies that have to pay them have very reasonably decided that settling for less than the anticipated defense costs is a financially sound strategy. I can speak for the costs of legal services -- over the last two years, I incurred over $100,000 in legal expenses to defend a complaint that never went to hearings -- this was all cost incurred in depositions, phone calls, motions, and other out-of-courtroom activities. The cost would have doubled had we actually ever gone to court. (These expenses, by the way, were not covered by insurance, but came out of my pocket. I eventually settled, despite my furious and absolute belief that I had done nothing wrong, because I couldn't afford to fight any longer.)

The misery, heartache, stress and baffled, frustrated rage that comes with being accused of something you didn't do, or being responsible for something in which you really played little or no part, cannot really be described to anyone who has not been through it. Finding out that you are at the mercy of a legal system which is horribly lopsided in places is disillusioning, to say the least.

I believe in lawsuits. I have seen patient outcomes that were the result of significant medical error. I've also seen my profession trying to cover up and close ranks around a case where the injured party should simply have been compensated. But I do NOT believe in the "lawsuit as lottery" mentality that pervades our society today, which results in waivers for everything; in mandatory guided dives; in closed access to sites and activities where someone with poor judgment might get hurt; in warning signs on coffee cups. I liked Europe, where you could walk up to the railing on a monument without having to stare through chicken-wire. If you fall off, you fall off. Why can't most of life be that way? If you have a heart attack and drown, or dive a rebreather that isn't yours, by yourself, and die -- so be it.

 

[Wookie]

Did a research paper on waivers for the local government when the ski industry wanted to be allowed to create a waiver that absolved them of any liability for anything they might do that might injure a customer including their own negligent and grossly negligent behaviour. The (very) short version of the paper is that allowing an industry to contract out of gross negligence is a bad idea from a public safety perspective. Leads to that industry to become very unconcerned about customer safety and creates practices that are pretty much guaranteed to create fatalities. May or may not apply in the specific facts of this incident but the general observation stands. Note that the paper did canvas personal responsibility and engaging in inherantly dangerous activities, but did conclude that if you are going to provide facilities and profit from people doing that dangerous activity that it was reasonable for the courts to ensure that you take resposibility for those facilities.

I am not a lawyer, nor have I ever dated one. That's not true, I did date one once, but that's another story altogether. Anyway, I find that your paper may have drawn some false conclusions, but completely understandable for Canada. First, as a quasi socialist country, you want the government to protect the people. I am born American to Canadian parents, so I have spent some time in Canada visiting. I'm not trying to be insulting, but you have a bigger nanny state than I ever hope to live in. The industry is not going to let basic safety rules slide just because they have a waiver for their own negligence or gross negligence. "Come ski Whistler. We have more Helicopter crashes than anyone" or "Jump on the high speed quad at Red Mountain. We last serviced it over 10 years ago and it's still running great!" are not exactly ways to gain confidence or customers. Word of mouth is the best or worst advertising you can have, so ski areas are not going to skimp on basic safety just for giggles.

A dive operation can in fact do everything right and a customer can still trip and fall down the stairs and break a leg. That's why we have insurance and waivers. We are trying to protect ourselves from the customers' lack or preparation or ham handedness. I had Terry DeWolf as a passenger on my boat many times. He did not follow the dive rules, although not egregiously enough to send him packing, we'd slap his wrist and call him a bad boy, and he'd be good till next time. Richie met him on the Spree on a technical diving trip that I organized. I know these players.

Lawyers in the US, especially in Texas like to see what they can get, and in fact did get a settlement out of the insurance company for the original certifying instructor and shop. That settlement was probably less than what the defence of Richie Kohler cost, but you know what? Us dive boats are sick and tired of settling when we did nothing wrong. Terry died of a heart attack. The coroner said so. Turned out Terry had some sort of heart virus, and he would have died if he were standing in the buffet line at Luby's. Why should my insurance company settle for a few hundred thousand for the equipment manufacturer, the dive boat, the trip organizer, and the History Channel just because Terry didn't have a life insurance policy? My rates should go up just because Terry didn't provide for his spouse? I don't think so. I have nothing but respect for the insurance company who paid for the legal team who said "No more. We won't stand for this."

Diving is a dangerous sport, regardless of what the certifying agencies tell you. If you choose to participate in a dangerous sport without properly planning for your, your spouse, and your kids future, woe be unto you. Don't come to me looking for a handout.