-
Recently I was asked to write about internet harassment and threats from my professional perspective. The friend who asked this of me is on the receiving end of some nasty communications from someone who evidently doesn’t realize that criminal conduct can very easily take place at a computer keyboard, and is punishable as a crime by imprisonment and a fine.
The federal government regulates interstate and international communication pursuant to the Commerce Clause. That clause is found Article I, Section 8(3) of the U.S. Constitution. Not surprisingly, Congress has enacted a specific statute addressing harassing communications. All states have their own laws regarding harassing communications which are enforced within the state. When the people involved in the communication are in different states or different countries, or when at least one of them is in the District of Columbia, the federal law applies.
The current federal law, 47 U.S.C. Sec. 223, addressing harassing communications was first passed June 19, 1934. Yes, even that soon into the advent of private interstate telecommunication there were harassment problems. Some things just appear to be human nature.
I hope that I can cut through the legalese and give you an ordinary person’s “translation” of what the law says. The law mostly addresses telephone calls, but because of the nature of the world wide web, which is accessed through telecommunication, the law applies to users of the internet as well.
I’m not addressing commercial communications, which is what “SPAM” mostly is. This blog is intended to address only personal communications.
These are the actions that can get a person fined and a prison sentence of up to two years, whether the accused person does it or if he simply allows someone else to use his telephone or telecommunications device to do it:
1) Knowingly make, create, or solicit and then transmit obscene communications or child pornography under the following circumstances:
a) with the intent to annoy, abuse, threaten, or harass another person; or
b) to a person under the age of 18;
2) Anonymous telephone calls or the anonymous use of a telecommunications device, including a computer, whether or not conversation or communication actually happens, with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications;
3) Repeatedly making a telephone call or using a telecommunications device, whether or not conversation or communication actually happens, with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications; or
4) Causing the telephone of another person to ring repeatedly or continuously, with intent to harass any person at the called number.
There are a couple of important things to note.
First, there doesn’t actually have to be communication. That is, the person receiving the communication doesn’t have to open the email and read it for it to constitute harassment under this law. If the sender is stuffing the recipient’s inbox with unwanted emails or sending lots of unwanted text messages to the person’s cell phone, harassment is obvious. If you go to your inbox and see 47 messages from one person in a the space of a couple of days, you know that harassment anticipated by this federal statute is taking place. People just don’t do that innocently.
Second, there has to be some evil intent on the part of the person sending the communication, except in the case of porn being transmitted to a person under the age of 18. In other words, if someone is just smitten with you, and emails you fawning poetry and love notes several times a day, they aren’t in violation of this law unless they really mean to bug the crap out of you. (Yes, in this situation “bug the crap out of you” can be a legal standard.)
So that’s the law in a nutshell, explained in ordinary language. I’m sure there are questions that you might have with specific scenarios. I’ll do my best to respond to them if you put them in your comments.
Disclaimer: I cannot give advice as to state law other than that of the State of Arkansas. This blog and the comments to it are not a substitute for a consultation with a legal professional in your jurisdiction about the specific facts affecting you. No attorney-client relationship is established by this blog and the comments to it.
One of My Old Cases
-
A few people have asked me to tell “war stories” from my law practice. Obviously I can’t violate any client confidentialities, but I can talk about my cases.
I have worked in the juvenile justice system for over 18 years now. I’ve worked as a lawyer for abused and neglected children, I’ve represented the parents who wanted to get custody of those children back from the state’s foster care system, I’ve represented the young juvenile delinquents who have charges ranging from rape to truancy, I’ve represented parents who were at their wit’s end and needed to institutionalize their children so that the children’s behavior could be addressed in a therapeutic setting. I’ve worked with the worst of the worst when it comes to child rearing.
I’ll tell you about the one that was the beginning of the end for me. I was already pretty burned out on child abuse cases by the time this client came along, but this case was the tipping point for me not wanting to take any other clients like this one on. It’s not a current case. It’s one I had several years ago. It is over, at least as far as I’m concerned. I got disgusted with my client and I asked the judge to let me out of the case. Fortunately, the judge saw things my way.
My client’s name was Diane. She was a single mother of three. Her son Joey was 13 when he raped his 9 year old sister, Karen. It was believed that he molested his 4 year old sister, Jenna, but Jenna couldn’t describe what had happened well enough for authorities to determine what if anything had actually happened to her. The medical evidence was inconclusive.
No criminal charges were filed for several reasons. First was Joey’s age. At 13 he was on the young side of even juvenile culpability for criminal conduct. His emotional and mental immaturity made him even younger. When the facts surrounding his own sexual abuse came to light, the decision not to charge him was easy. Joey needed treatment for his own victimization as much as he needed treatment for perpetrating against his sisters.
Joey was taken out of the home and put in a special psychiatric facility for boys who are sexual offenders. Joey completed the program. He worked through his own issues of abuse and became able to articulate the situation which led him to act out with Karen and Jenna. All that remained was for him to have series of reconciliation sessions with his sisters, and start home visits to prepare the family for his transition back into the home. It was at this point, fourteen months after Joey went into residential treatment, that things fell apart.
Joey’s therapist asked for contact information for the girls’ therapist so that joint sessions could be held. Diane had no name to give him. More than a year had passed since the abuse, but Diane had never put her sexually abused daughters in counseling. In the interest of trying to help Joey go home, the residential treatment facility offered to work with the girls in a limited number of sessions.
At the first session, Karen refused to enter the room if Joey was there. When Joey was brought into the room where Karen was, she became hysterical. The therapist separated the children and interviewed Karen separately. The therapist learned from Karen that neither of the girls was going to school. Karen, who was now 11, was skipping classes to have sex with boys for money. Jenna, who was now 6, refused to go to school at all and had to be physically carried into the building kicking and screaming. When she would be put down she would run from the building, still screaming. Diane was exhausted from dealing with her daughters’ behaviors. She had given up requiring them to go to school. Some days the girls stayed home alone. Other days they would go to work with their mother at the fried chicken place in the mall. There was no place for the children to sit while their mother worked. Karen might read a book or draw, but 6-year-old Jenna was more outgoing. She would skip off “to look around” and on more than one occasion was returned to her mother by mall security because she was begging money from shoppers.
Before the second session, Joey’s treatment team concluded that there was no way he could go back home. There were just too many unresolved issues relating to the sexual misconduct and Diane seemed unable to handle basic parenting and discipline. No friends were willing to take Joey into their home, and there were no relatives. The only option was for Joey to go into foster care.
The facility reported the situation to the state child protective services agency. A case was opened in juvenile court. Because Diane faced losing custody of one of her children to the state, Arkansas law said she was entitled to the services of a lawyer. Just like in criminal cases, if she couldn’t afford a lawyer one would be appointed for her. The judge called and asked me to take the case.
I’m used to tough child sexual abuse cases. I can’t count the number of them I’ve had. Every single one was heartbreaking. In every single one there are children whose lives have become hell. In most of them at least one parent has to make a choice between victim and perpetrator. Often the mother is abused even more than the children are. But as similar as this case was to all the others, it was also radically different.
The socioeconomic status of the typical family I’m appointed to represent usually means that the mother had her first child before reaching the age of 18, was raised in poverty by a single parent, has no friends or family in a supportive network to help her, is chronically unemployed and may be surviving on social security or welfare payments, knows very little about basic personal hygiene or housecleaning, and probably drifts from man to abusive man to make ends meet, having a child or two with each.
Diane had a college degree. Her first child was born when she was in her mid-20’s. Her parents, who were deceased, had been comfortably middle class. Her father had been a Methodist minister. She had one brother who was much older and from whom she was estranged. He was an accountant in another state. Diane was a manager at a fast food restaurant. She and the children were always clean and neat. She did not have a boyfriend. She had been divorced for about three years. Her ex-husband was the father of all three children. The social services workers had no complaints about the condition of her home.
How had such a woman come to this? Abuse knows no social or economic constraints, but people with Diane’s socioeconomic history generally take advantage of resources and social networks. Diane had not.
More of the story was revealed in Joey and Karen’s testimony and in the therapy sessions that followed. The children’s father had been arrested for molesting a niece and nephew about the time Diane had became pregnant with Jenna. She had never worked, so Diane had no idea how to support herself and two children, especially with a third on the way. When her husband pled guilty and went to jail, another man came to her rescue. He moved into her home. Diane had apparently installed him as a substitute for her absent husband. Diane was bedridden in the final stage of her pregnancy with Jenna. Her boyfriend found sexual gratification with her children, occasionally in the same bed where Diane was. Diane said she didn’t remember that actually happening, but if the children said it happened then it was probably true. I was astounded. If someone had molested my kid in the same bed I was in, I think I’d damn sure remember it. Coincidentally, the boyfriend vaporized when Joey’s sexual misconduct came to the attention of the authorities.
After I came on board, the case went from bad to worse.
Both girls were admitted into acute care residential treatment facilities – read: psychiatric hospitals – and both were eventually returned there for long term care lasting several months. Diane never understood that the children needed to be told no. If one of her children wanted to do something, the answer was always yes. She had no respect from them and no control over them. She also had no empathy with them or even a basic understanding of why they behaved the way they did.
The kicker came when Diane found herself another man. A man from Mexico was hired at the fast food restaurant. Although he did not speak English and Diane did not speak Spanish, they evidently found a way to communicate in the international language of love. Once again, Diane allowed a man to move into her home.
The judge ordered Diane to move the man out. No men were to be around the girls at all when they were home, and this included Diane’s boyfriend. Diane protested with the same outraged mantra all women use in such situations: “You’re telling me I can’t have a life of my own?” Certainly she could. But not if she wanted her children to be at home with her.
Diane complained bitterly about the fact that her boyfriend couldn’t be around her daughters. At this point the girls were coming home only for weekend passes from their residential treatment, but the hospital believed the girls had reached maximum therapeutic benefit (in other words, Medicaid was refusing to pay for a longer stay) and they needed to be released.
“You have to choose,” I told her. “Which is more important, your children or some man whom you can’t even talk with?” While she struggled with that decision, she told me that the weekend before Jenna had thrown a fit because she wanted to keep riding her bicycle after dark one night. She said she just couldn’t do anything about that sort of misbehavior, and she expected Jenna would do the same thing the next time.
I was incredulous. “Who’s the adult?” I asked. The words were out of my mouth before I even thought about them.
“What do you mean?”
“I mean, take the bike away from her. Ground her from it if she doesn’t mind when you tell her to come inside.”
“But she’ll get mad at me!”
“So? You’ll be setting a limit on her behavior. You’ll be giving her consequences. Diane, this is elementary parenting. Surely you can do this.”
“But when she gets upset she gets so angry.”
“Send her to her room and make her stay there until she calms down, then.”
“What if she won’t stay there?”
“Turn her around and walk her back, sit her on the bed, walk out, and close the door. Take control. This is what the therapists and the judge have been telling you to do. It’s what parents have to do.”
“Maybe I can get Pedro to do that.”
“No, Diane, not only is he unable to communicate with the children effectively, you can’t have him there. And even once he is allowed there you have to do the parenting, not him. You have to start parenting your kids yourself.”
“Are saying I’m not a good parent?” She was seriously shocked. I heard it in her voice.
“Yes,” I answered. That’s exactly what I’m saying. It’s also what child protective services, the court, and the therapists have been telling you.”
“I don’t believe you just said that to me,” she said, stunned. Sadly, she wasn’t kidding.
The next day she called to let me know that Pedro was staying so the girls would need to go live in a foster home. She had made her choice.
I was burned out on clients like Diane. I’d had all I could take. I just didn’t care anymore about trying to put their families back together. I had other parents who cared just as little for their children’s welfare, but rarely had one displayed that indifference more bluntly. I stopped taking abuse cases.
I wound up my last child abuse case about the time I started blogging here on Yahoo 360. I don’t want to take any more. I’ve turned down judges who have called asking me to take cases. I have no heart for it any more.
I don’t know why Diane and her kids were on my mind today. Sometimes, though, I think of some of the things that happened in those child abuse cases and I am still amazed that such things actually happened. It amazes me how a parent can bring a life into the world and then be so completely uninterested in its development.
Human Subspecies Identified: The Drive-By Critic
-
What prompts people to be ruder to one another online than they would ever be in person?
I pondered this question this week when, having suffered without a computer for most of the week, I noticed a bizarre pair of quick comments buried on my page. The first comment branded someone a “liar.” Since I haven’t had that particular experience with the person in question, that comment was easy enough to ignore, especially since it was left by someone I had never before encountered whose profile has now been deleted.
The second comment by that same person was a bit odd, even as far as odd comments go. It said: “Why dont you tell everyone how you said everyone on your list are loosers, unemployed bums and you are just having fun with them to see that they have no life and believe your bullshit stories, lies and how they are just a number. (Dont whisper ever a word to anyone Tom please I am just having fun with them but I dont care if they live or die as long as they keep me entertained).” Sic, sic, sic, all the sics.
Since most of what I write isn’t personal and has nothing to do with real people, this was a strange statement to be directed at me. The person has no idea who I am or what my blog is all about. Even more obviously, it has never read my page. (I’ll settle on the pronoun “it” for this commenter, since assigning a “he” or “she” would humanize it beyond what it deserves.) I doubt that if it bothered to read my blog it would even understand it. (Do I dehumanize them by doing this?)
First of all, if there is drama on my page, it will be an outrageous fictional drama of my own making. Witness the recent Giant Cock/Baby Chick Paternity Scandal. Secondly, anyone suffering through a personal crisis will have my sympathy and support, never, ever my derision or insults.
Obviously, the commenter was lost and thought they had found the page of someone who would get stirred up by these weird allegations. What’s so strange is that I cannot imagine anyone I don’t know coming up to me out of the blue and calling someone a liar. Nor can I imagine anyone spreading gratuitous untruths just for kicks in real life. Why does this happen here? [Edit: 5 years after this post, I finally know someone in real life who does this. They are a twisted, narcissistic, malicious person who thrives on upsetting others, perhaps for the attention.]
So I am led back to my original question, prompted by this commenter’s bizarre antisocial behavior: What prompts people to be ruder to one another online than they would ever be in person?
I read a column in the April issue of Discover, one of the very few publications I’ll actually pay money for. The columnist, Jaron Lanier, suggested that online nastiness is the product of easy, “drive-by” anonymity. When the commenter can create a quick and disposable ID, more hostile comments are left. Where more information must be given, and the ID creation process is a little more cumbersome, fewer hostile comments seem to be the rule.
For instance, on sites like Slashdot, where a new ID can be created for each comment without providing much information to the host site, people get indescribably nasty with one another. The same holds true for some of the edit wars hosted by Wikipedia. On the other hand, I’m told that players on World of Warcraft rarely encounter such boorish behavior. One reason for the politeness of the WOW site might be that the penalties for such conduct result in the person being banned from the game.
Lanier proposed several different considerations as to why online behavior can be either good or bad. Demographics of the users and the times of day that the users in question tend to visit the site to leave their comments were two considerations he named. I would add something else to his list: topic. If the blog or article contains a personal topic, then personal comments are made and sometimes those comments are personally insulting.
You can see it everywhere on social media, probably among your own contacts. People who have the “diary” blogs and overshare on Facebook, the ones who talk about their personal lives and their trials and tribulations, often seem to be the ones whose blogs attract insults and “drama” from perfect strangers. There are people who allow people they don’t know to view their posts even when highly personal matters are addressed. Mental illness, chronic physical illness, substance abuse, and the crises that necessarily go along with such things are fodder for judgmental people. And so many judgmental people love to cast those stones at the ones they see making decisions they wouldn’t make given their arm-chair quarterbacking of someone else’s life.
How can we truly claim that someone who has a mentally ill family member, and coping the best they can, is making bad decisions? Even if we read their posts every day we don’t have the whole story. We don’t have the nuances of interpersonal interactions, or even a vivid description of what the caretaker is dealing with on a day-to-day basis. What about the person who is writing about her fibromyalgia? Who among us can really say to her, “Quit complaining. It can’t be that bad,” when we really don’t know what it feels like to be her? And what about the mother who is dealing with the drug-addicted son who is stealing from her, beating her, and otherwise abusing her? Can we really tell her she is stupid not to call the police when we don’t know all the dynamics of the situation?
I am aware of people who write about extramarital affairs they have, or who write about overtly sexual matters. They provide gossip to others about themselves and even about other people. Their soap opera of life is right here for anyone to read and comment upon. Some of them claim to eschew “drama,” but they invite that drama in the same breath. Do we blame anyone for jumping into the fray? I don’t think too much of the people who lay overly personal things on the table for the world to see, but those who attack them are just as bad.
Then there are the social media accounts that are not who they seem to be. For instance, one person might have multiple IDs and different pages where they post different things to each, even to the point of having the accounts interact with one another. Others pretend to be someone they aren’t. Both of these types of people are masquerading. When they are unmasked, some among us feel righteous and triumphant. Others feel betrayed. Occasionally the “victims” of this duplicity feel a need to strike back. I have seen multiple accounts suddenly disappear because their owners felt persecuted.
The bottom line is that no one deserves rudeness. No one, even if they seem to invite criticism, should be judged by anyone else. The evil pettiness in our human natures that tempts us to throw stones at someone else’s glass tower is our undoing. No one, ever, deserves our enmity. If we don’t like what someone says in his or her blog, the best way to handle it is not to clash with it head-on, but to pointedly ignore it. It’s none of our business, anyway.
There are exceptions to the “ignore it if you disagree” rule. Debating issues is one of them. I like it when people disagree with me and explain why. The keyword here is “debate” – labeling someone as “stupid” or lumping in them with an ill-defined “you all” isn’t debate. It’s an insult. There should be no place for it here. Articulating an opposing point of view is not offensive. Assuming someone is “liberal” or “Republican” or “fundamentalist” because of their views is. Name-calling is not a debate. If a commenter says they disagree with me because they “feel sorry for my shortsightedness” then they can go their merry way to hell, and please never darken my door again. They have given me no reason to listen to them at all.
We should all feel free to create and recreate ourselves as we see fit., on the Internet. We can be anything we want to be. We might decide to be a pirate, a lion-tamer, a virgin, a debutante, a musician, a model, a Wench of Aramink. We can be anything we want to be. Where else is such a flight of fancy possible? Where else can we live out a dream and not hurt anyone?
By the way, in case anyone’s not sure, I probably don’t really qualify to be a wench. I’m too old. Whoever heard of a wench with gray hair at her temples? And my name isn’t Aramink. Aramink is a place. Gasp. Don’t hate me because I’m such a bald-faced liar. Embrace me, and admit that occasionally you decide not to post unflattering pics of yourself in your blog, too. I promise not to be critical as long as you’re polite. And I promise lively debate where it’s appropriate.
Panty Raid!
-
They just won’t leave Wench’s Virgin Training School alone, will they? If it’s not the likes of every Mohammed, Achmed, Hakim, and Hadji, then it’s the Dirk Diglers and other Giant Cocks of the world.
That’s right. Dirk Digler. I said it.
Dirk was hanging out at the Virgin Training School last Tuesday night with Judge Hanna M. High, who was showing him what she had learned in her revirginification classes, when suddenly Guy, High Priest of Meatloaf, wheeled up in his Whale accompanied by a crew of revelers in RVs, a motorcycle with a sidecar, and various other vehicles.
Now, we all know that Guy is the Spiritual Advisor to the Virgin Training School. Naturally the Virgins welcome him with open … ahem… arms when he comes. So when the guys tumbled out of all of those vehicles intent on a raid, why, we Virgins hardly knew what to do.
It was not just any raid, my friends. It was a panty raid the likes of which have not been seen since most of us were in college, if even then.
I have it on good authority that Ted scored no less than a dozen thongs in different styles and colors. Doug, being somewhat less discriminating, absconded with everything from bikinis to one very large pair of white cotton granny panties. Guy himself had two hands full of silky underthings when he burst into the room where the Judge was demonstrating her moves to FBI Agent Dirk Digler, a former Navy SEAL who had been recruited to help with special training.
When he saw Dirk and the judge working on certain techniques from the Pop-Up Kama Sutra, well, Guy went a little crazy. He grunted and screamed wordlessly and headed for Dirk, who in self defense placed a feather pillow between himself and the monster that Guy had become. Guy attacked and feathers flew everywhere.
Agent Digler was so disconcerted he felt he had to do something. Fearing bad press, he pretended to arrest Judge High. It was the only thing that calmed Guy down. Guy finally quit yelling wordlessly, and Steve and Ralph led him away after speaking to him in strong words of one syllable or less. Apparently, Guy was in no shape to listen to reason although he took commands from the fellows quite well.
Somehow the whole debacle was reported in the news as being a scandal. The article claimed that Judge High was arrested in a bribery scandal and that there was a great deal of money in the room with her.
Folks, the money that was found in the room was part of the props for the lap dance the judge had been demonstrating for Dirk. When she tried to explain that to the High Priest of Meatloaf he would have none of it. He threw money of his own at the judge and yelled wordlessly, “Nnnnnuhhhh! Uuuunnnnnhhhh!”
Poor Judge High has been forced to resign from office. Because I represent Sherry’s daughter Katie in the Giant Cock Baby Chick controversy, the Giant Cock’s lawyer, Ze Baron, demanded that Judge High be removed from the case and the proceedings be put on hold. It’s not as though the Virgins and the Baby Chicks are related interests, even. Humpf.
Thankfully, though, a new judge has finally been appointed. Judge Bugeyes Billy, known affectionately among many of us as OhBilly, has graciously agreed to preside over the case. He has assured Ze Baron that he will remove himself at the last impropriety, so the case is in good judicial hands indeed.
Judge Bugeyes Billy has ordered all of the parties to Dr. Emma’s page on Wednesday, March 14, for DNA testing. Dr. Emma told Ze Baron it would take several days for the results to be known, so we will sit with bated breath awaiting the outcome of the paternity testing. Those poor, fatherless baby chicks are being tended by their foster grandfather, Len, while Sherry and Katie are in New York on urgent business.
We fervently hope that this tawdry paternity matter can be adequately addressed in the very near future. Those chicks are becoming expensive for my client to maintain. Sadly, there is talk that some of the chicks will have to be sent elsewhere to live because they are becoming too large for their pen.
It’s those Giant Cock genes.
Foster Children
Amber Alert issued for baby boy; social worker dead
As my friends and regular readers of this blog know, I’m a lawyer. For most of the past 18 years, I have focused my practice on a much-maligned and little-understood area of the law: juvenile justice and child welfare. I’ve been a lawyer for kids and families.
I have stopped doing this work in the last year, though. I’m burned out and disgusted by a system that is designed to make families fail. I’m also tired of parents who can’t get it through their heads that their conduct endangers their children.
The story that is described in the link at the beginning of this blog entry tells of a social services worker who was apparently murdered when she brought a foster child to his biological mother’s home for a visit. The wire service report doesn’t begin to tell half of what brought the situation to such a point. As someone who has worked in the system for nearly two decades, I can easily fill in the missing facts.
No mention is made in the article as to why this child came into foster care. The fact that the child is developmentally disabled may mean that there was abuse or neglect in his home environment, or it may have nothing at all to do with why he was removed from his mother’s custody. Please keep in mind, though, that courts do not remove children from their parent’s custody unless there is evidence that the child is in some sort of danger or at risk for serious abuse or neglect.
When children are removed from their parents and placed in foster care, federal law mandates that the social services agencies involved make reasonable efforts to rehabilitate the family so that the child can be returned safely to the parent from whom he was removed. To this end, visits between the parent and child must take place. Normally these visits are supervised at first, but as reunification of the family becomes more likely, visits often take place in the parent’s home. The fact that the social worker had brought the child to his mother’s home for a visit probably means that the mother was soon going to be given custody of her child again.
A 33-year-old mother whose child is in foster care and who has a 23-year-old boyfriend is most likely not exercising good judgment in her life choices. Although many of us see a ten-year difference in age as a small hurdle, the difference in the maturity level between someone 23 and someone 33 is usually pretty marked, especially where marginally functioning people are concerned.
I have been involved in many cases in which the judge has ordered that the mother not have any boyfriends around the children. Before the First Amendment “freedom of association” arguments are made, let me explain why I often agree that this is wise on the part of the judge and that such an order is often in the best interest of the children.
A mother who is moving from man to man, from relationship to relationship, does not display the stability a child needs. Furthermore, the men that rotate in and out of the mother’s life are frequently abusive both to her and to the children. The mother is the parent upon whom the children depend, and it is the mother who must be able to provide for them.
So, in a nutshell, revolving door-type boyfriends are frowned upon. If the boyfriend and the mother are in a long-term, serious relationship, though, and the boyfriend participates willingly in the services designed to reunify the mother and children, he is not a liability.
Often children are removed because of violence between their mother and her sexual partner, be it a boyfriend or a husband. Judges frequently require that the mother not allow the violent man around the children at all, and if he is still in the picture the judge is extremely reluctant to return the children to their home. Children who see their mother’s lovers brandishing guns and knives tend not to forget such traumatic events. And although a judge will never order a woman to get a divorce as a condition to her children coming back home to her, the message is made more than abundantly clear: she must choose between her man and her children. Sadly, these mothers often prefer their men.
Typically, the mother is the parent from whom the children are removed. The mother is usually surviving on minimum wage income or on government assistance alone. Frequently there are no sympathetic family members able to help the mother financially. The mother turns to the only person willing to help: a boyfriend who is looking for a place to live. He moves into her government-subsidized home contrary to the terms of her lease. This jeopardizes the roof over her head, but food stamps are never enough to feed a family. She needs money to pay for utilities, clothing, and additional food. She needs this extra income to provide food, shelter, and clothing for her child and herself.
The financial stresses of a middle-class existence are sometimes overwhelming, so imagine a family living on $200 worth of food stamps a month and perhaps an additional $800 coming from a combination of government assistance, unemployment checks, or minimum wage jobs. There simply is not enough money to survive.
Other than poverty, probably the leading cause of child abuse and neglect, though, is drug abuse. In the area where I live, and in growing frequency nationwide, crystal methamphetamine is the drug of choice for poor people. It offers a euphoric high for not very much money. It can be made at home. It kills personalities, brains, and relationships. Meth is worse than crack ever dreamed of being, in my opinion. The brain damage caused by meth use is immediate and irreversible.
Add to that the inertia of depression that overtakes parents who are overwhelmed by their lot in life or by drug or alcohol abuse. The home is a wreck, knives are within easy reach of children, hot irons are left plugged in where children pull them off ironing boards, trash is not removed from the home, and roaches, fleas, and lice are jumping everywhere. If there are school-age children, it is unlikely that the parent gets them up and to school regularly, even though the children can be fed two or three hot meals that don’t require food stamps to be expended.
The financial and environmental stresses take their toll. In anger, the boyfriend or the mother lashes out at a baby who won’t stop crying, a toddler who refuses to take a bath, or a child who is making too much of a mess. The results are a shaken baby with brain damage, a toddler with second-degree immersion burns from being held in a tub of hot water, a child bruised black and blue from repeated beatings.
At this point, all it takes is a single telephone call from a daycare worker, a teacher, or a neighbor. Social services investigate the home. The children are then taken away from everything they know and placed with strangers in a foster home.
A very telling statement was included in the AP report on this murder. A neighbor described the mother as “goofy, like a little kid…..But every time I talked to her, she was sweet as can be.” This statement speaks volumes to me. The mother is probably functioning at a low level. She probably loves her child but is unable to care for him the way he needs because of his developmental delays and her own limited mental capacity.
Many, many of the parents whose children are removed for abuse and neglect function at a mental level so low that they cannot manage many of the skills the working class and middle class take for granted. They cannot budget their income. They cannot consider the long-term implications of their decisions. They can perform jobs only at the most basic level. They may receive disability benefits not because they are playing the system but because they are truly disabled as a result of mental illness or mental impairment. More often than not, the parents of abused foster children were themselves abused children. They have no role models for good parenting.
Parents whose children have been removed from their care have tried to run away with the children. They have hidden the children from social services workers and from the police, moved across state lines, and simply refused to turn the children over to foster care. Now, it seems, that there is at least one child over whom murder has been committed.
One of the dangers of being a social services worker is that home visits have to be made. This is the case whether or not visits are occurring in the home. The social service workers have to know whether or not the home is physically suitable for a child to live there. Sometimes social services workers are assigned to actually go to the parent’s home to teach housekeeping and home-making skills – everything from how to clean a toilet to how to budget income. Parenting classes in the home are also effective, but require the social services worker to go to the home.
Parents usually hate to see the social services workers come. These workers are the same people who took the child from the parent in the first place. They virtually have carte blanche to open any door, look in any cupboard or closet, remark on deficits in housekeeping, and spin their tales in court of the parent’s lack of cooperation. The parent usually has no one on her side, other than her lawyer, to refute the allegations.
Imagine, for a moment, that your neighbor has sued you because they do not like the way you trim your grass. The judge has said that your grass trimming is substandard, and orders your neighbor to monitor how you keep your lawn and report back to the court in six-month intervals. You do everything the judge requires, even to the point of taking special classes in lawn maintenance, but you cannot seem to please your neighbor who continues to find fault with your lawn maintenance. Within one year, according to federal law, the judge says you have had long enough to learn effective lawn maintenance and orders your home and lawn sold. You will not be allowed to retrieve your belongings from the house, but must find somewhere else to live. You will be allowed one last night in the house but that is all, and an armed guard will stand watch to ensure you do not vandalize the place. After you leave the house, your neighbor arranges for his friend to move into your old house. The friend’s lawn maintenance skills may not be much better than yours, but the neighbor does not complain.
Can you imagine the cries of injustice if this were to happen? This does happen, though, with our foster care system. The children are the lawns, the social services agencies are the neighbors, and the parents are the proprietors of that substandard lawn. Shockingly enough, sometimes the lawns may have been substandard only once, maybe by accident, maybe because a caretaker hired to oversee the lawn while the proprietor was on vacation left town himself.
I am not about to make excuses for parents who abuse and neglect their children. I have seen cases of abuse that have made me physically ill. I have seen children who are little more than wild animals because of the emotional vacuum to which they have been subjected. I have seen children who are permanently maimed or scarred by physical abuse. I have listened to children talk about horrific sexual abuse in a matter-of-fact way as if they could not imagine a world where such things did not happen. I have been in the homes of children that reek of feces and vomit, in which fleas and lice make a living slipcover for sofas and chairs, and where food has been left to grow old and moldy and full of maggots on the kitchen counters. It is despicable what some parents do to their children.
But I have also seen miracles of parenting and achievement where there was no apparent hope. Those cases are the ones that kept me accepting these cases year after year. Those, and the happy smiles of children who get to go back to their homes and families. It is rare that even abused and neglected children don’t want to go home.
Linguistically Speaking
Sometimes I click on the links for Blogthings and take the little quizzes. Most of the time they’re just fun, silly things.
| Your Dominant Intelligence is Linguistic Intelligence |
| You are excellent with words and language. You explain yourself well. An elegant speaker, you can converse well with anyone on the fly. You are also good at remembering information and convincing someone of your point of view. A master of creative phrasing and unique words, you enjoy expanding your vocabulary. You would make a fantastic poet, journalist, writer, teacher, lawyer, politician, or translator. |
Wait. Did this thing just say I’d make a good LAWYER?
HAHAHAHAHAHAHAHAHA!!!!
Please excuse me while I pick myself up off the floor.
I hate practicing law most days. I spend the day with my ear glued to a telephone listening to people complain. Often I listen to them cry. This is where I sheepishly confess that while they are crying I am usually playing solitaire, cold-hearted bitch lawyer that I am. It’s not that I’m unsympathetic, but I’ve heard it all so many times before.
If it weren’t for the clients, the practice of law would always be fun.
I have a general law practice, and I am the only attorney in the office. That is good because there is barely room enough for me here in the alcove off my kitchen. Days when Jane comes we are crowded and busy. Jane is my right hand and my left brain. I could never practice law without her. In fact, when she took two years of maternity leave, I practically shut my doors. Thank god she’s back because Jack and I were getting hungry.
I handle a lot of divorce and family matters. I also have a pretty active juvenile law side to my practice. I adore the business, real estate, and estate planning clients because their needs are normally simple and straightforward. It’s these children and their families that make me insane.
When a kid is in trouble with the law, when a couple is divorcing, when children have been snatched by the state for abuse, when there is a fight over custody and visitation, my clients are not rational people capable of reason and logic. Emotions run so high, in fact, that I hear myself telling the same clients the same information over and over and over again. They’re just too stressed out to put what I tell them in their long-term memory banks. I don’t resent telling them the same things over and over – I understand how stressed they are. But there are times when I wish they would just write down what I tell them.
Once I represented another divorce lawyer in her divorce. She asked me three times which judge was assigned to her case and then asked where the courtroom was. This woman practiced in that courtroom in front of that judge regularly! The stress of family upheaval makes people nuts.
And clients lie. Oh, how they lie. They spin their facts and mislead their attorneys and we usually don’t find out about it until settlement conferences, or worse, when we are in court. I give every client the same lecture at the beginning of the case: “Tell me everything, no matter how damaging or negatively you think it reflects on you. The other side will bring it up. If I don’t already know about it, I can’t plan a response that makes you look good. ”
I’m capable of spinning most facts in my client’s favor, but only if I know those facts in advance. Sure I can think on my feet, but getting broadsided with unexpected proof is excruciatingly unpleasant. And even though I investigate the case, no one but the client and the opposing party knows the client’s secrets, and the opposing party would rather blindside me in court to get me stuttering. If I can’t respond adequately, my client isn’t responding adequately, and no matter how hard I may have worked on it, the integrity of the case is compromised. And that is the client’s fault, not the lawyer’s fault.
Then there are whiner clients. These are the ones who call up every day because they think the “counselor” part of my title means I’m a therapist. They could find a better therapist for much less than what I charge an hour.
There was this one guy I represented in a divorce a number of years ago who called three times a day, minimum. He always “wanted an update.” What he couldn’t seem to get through his head that if I was on the phone telling him nothing had happened yet, I couldn’t be on the phone with his ex-wife’s lawyer. If I was on the phone with him, I wasn’t drafting the settlement agreement. If I was on the phone with him, listening to him carry on about how poorly he was treated during his marriage, I wasn’t working on his case. But he was taking up my time and you had better believe I was billing him.
I told him that when something happened in his case he would be the first to know. I explained that what he was telling me should be shared with a therapist. No, he wanted to talk to me. I can’t do a damn thing about his broken heart. He was taking away from time I could have been using much more productively. He just had to talk to me. Every card that I turned over in those countless solitaire games cost him money. Of course, he complained about the fees. Had he gotten the therapist it would have cost him much less in the long run. And a therapist may have been able to help him deal with his broken heart.
Some clients believe I wait in my office all day for them to come to me with their cases, and that once they leave me I will devote 100% of my time to their case until it is completed. They disregard completely the fact that at any given time I have anywhere from 75-100 other clients, some of whom actually have the audacity to think that they should have priority. The worst offenders in this category are friends and family. After all, I’m probably doing the case for free or damn close to it, so why shouldn’t I put it at the top of my list?
I have this one relative who likes me to handle real estate deals for her. Let’s call her “Auntie Itchy.” Auntie Itchy is well situated in life and has her hands in many pies, mostly of the vegetative sort that are grown here in Arkansas. She sometimes needs deeds, contracts, mortgages, leases, and the like, so she calls me.
As soon as I get off the phone with her, Jane and I are flinging files, slamming drawers, pulling out forms, looking up legal descriptions, calculating amortization schedules, and generally freaking out because we know the phone will ring again before we have everything pulled together and Auntie will be demanding to know why she doesn’t have her document yet.
Twenty whole minutes may have passed, and we aren’t moving fast enough to suit her. Auntie is very imperious and demanding. She is not at all understanding. And if I really need to be in court getting a protective order because some child is being sexually molested by mom’s boyfriend, I just need to shift my focus to the truly important thing: Auntie’s fucking lease. For the millionth time, I swear I will never again represent a friend or family member.
What do I do when friends and family come to me and beg? You guessed it. I take the case. Representing friends has cost me more than one friendship. It’s friends who sue their lawyers for malpractice when they don’t like the outcome of the case. That’s right. These friends are the clients I do listen to sympathetically, who I undercharge for my services, who call me at 11:00 at night (or 2:00 in the morning), who I don’t hassle when they are three months late paying my bill.
Those friends are the ones who threaten me and actually hire another lawyer to sue me because they didn’t get the miracle they wanted in court. Of course, I probably told them they were going to get less than what they ended up with, but still, anything they didn’t get is my fault because after all, I proved I could get more than I told them when I – true story – won their freaking case!
Clients also don’t understand that for their lawyers, the case is not personal. It is a case file that needs to be worked, investigated, prepared, and concluded. It has a beginning, middle, and end. The client’s case is not the lawyer’s life – except in death penalty cases, but I don’t do adult criminal law so that doesn’t apply here. We have lots of cases, and none of them are “life” to us.
Furthermore, opposing counsel is the person we play tennis with, went to law school with, see at cocktail parties, and hang out with on weekends. Our kids go to school together. Lawyers tend to be friends with other lawyers. That’s why we speak to each other in friendly tones. We are doing our job, but our job is not to make enemies of the people we work with or with our friends. We work as hard as we can, but we work with a detachment from the emotions that our clients are caught up in. Clients get angry because lawyers aren’t as emotional about their cases as the clients are. I work hard for my clients, but I am not going to get ulcers over them.
Practicing law isn’t all bad.
I love crafting a good argument in a brief. I enjoy the interplay of cross-examining witnesses. I revel in the satisfaction that the right person is taking the children home and that the kids are safe and won’t be abused. I like the feeling of accomplishment when the contracts or wills are signed and the files closed. I get so high when I win a difficult case in court – I go around declaring “DAMN, I’m good!” to everyone within earshot. I’ve held several leadership positions in the local and state bar associations. It’s an honor to be chosen for those positions.
It’s not like I’m some fat cat always sitting in my office collecting fees – hell, half my clients stiff me. I do represent poor people for no fee at all, and I don’t resent doing so when I see that I’m making sure someone without money has the same access to the legal system as someone who does have it. But I think it’s only fair that those pro bono cases should be my choice to take, not be imposed on me by clients who can pay but simply choose not to.
There is one woman I represented very early in my career. She still pays me $25.00 per month. That’s what she can afford to send, so that’s what I accept from her. I’m not an unreasonable ogre when it comes to collecting my fee, but if I’ve done the work I deserve to be paid.
The lows so outweigh the highs in this job. Sometimes I really wish I had become a librarian instead.
Tort Deform
A tort is an action taken by one person, either intentionally or negligently, that harms another person. They normally include actions that are not covered by a contract or by any statute. Ever since there was a way to lodge a grievance against one’s neighbor, someone who believes he has been harmed by someone else has been able to sue the wrongdoer for damages caused by the wrongful act. Tort lawsuits make the news most often, even though they are by no means the majority of suits filed. We can’t help but whistle in amazement when we hear of the multi-million dollar awards that juries allow in the most egregious cases.
What Do Damages Cover?
Nothing can give back the things these victims of negligence have lost: the diminished income because of time away from work; the unmarred face that existed before an unleashed dog mauled a four year old girl; the mother who was killed by a drunk driver; living without constant pain caused by the injuries in an accident; the cheerful contributions to her family that the coma patient used to make before the doctor ignored the pulmonary thrombosis that led to her vegetative state.
Whether it’s a car accident, a doctor who ignores symptoms, or a vicious dog who attacks a child, the person who is hurt should not have to pay the price for the injury. They pay for other people’s negligence in ways that sometimes are horrific. The legal system has evolved ways to compensate these people for the difficult changes brought on by being in the wrong place at the wrong time, or by trusting their care to someone who proved to be untrustworthy.
Once liability for wrongdoing is established, the person committing the wrong, known in legal circles as the tortfeasor, must pay for pain and suffering when someone is injured badly enough to merit such a payment. Pain and suffering is impossible to quantify on any objective scale. Think of damages for pain and suffering to be the price the injured person charges the wrongdoer for what he has gone through. How much money would it take for you to voluntarily suffer from whiplash? How much money would make you willing to suffer brain damage? What is your price for being in a coma for the last twenty years of your life? For losing an arm? For losing your sight?
Tort Reform Equals Medical Malpractice Lawsuit Reform
Tort reformers like to claim that medical malpractice lawsuits are frivolous, brought by money-hungry lawyers who are so unethical as to sue for any perceived slight, no matter how small, and whose greedy clients are looking to win Legal Lotto. It is no accident that the insurance industry leads the battle charge into tort reform.
Unfortunately, “tort reform” usually means “medical malpractice lawsuit reform.” People think that greedy, pit-bull lawyers are mean to gentle, caring, well-meaning doctors, who are just doing their best to heal people who probably can’t be healed in the first place.
That is not the case.
A Harvard Medical Practice Study published in the New England Journal of Medicine in 1991 concluded that tort litigation claiming medical malpractice only “infrequently compensates patients injured by medical negligence and rarely identifies, and holds providers accountable for, substandard care.” To give that statement some perspective, the study reported that “of the 280 patients who had adverse events caused by medical negligence as defined by the study protocol, 8 filed malpractice claims.” Eight claims out of nearly three hundred instances of medical malpractice would not seem to be such an outrageous amount that the court system or even doctors are being overwhelmed by frivolous lawsuits. On the contrary, when only 2.8% of people with valid claims actually make them, one would tend to think that these suits are under-represented in the court system, not overwhelming it.
Frivolous claims?
The situation is not appreciably different now. The results of a study done by the Harvard School of Public Health in conjunction with the Brigham and Women’s Hospital and the Harvard Risk Management Foundation was published in the prestigious New England Journal of Medicine in 2006. A team of physicians reviewed a random sample of 1,452 medical malpractice claims to determine whether a medical injury had occurred, and if so, whether it was due to medical error. A little over one-third of the cases had either no errors or no medical injury at all, according to the reviewing doctors. Of those that had no errors or injuries, damages were paid to the alleged victim in only 16% of the cases. Sixteen percent of the the approximately one-third of the claims that were non-meritorious means that less than six percent of the total claims that resulted in money paid out by the insurer should not have been. That means that when someone brings a claim that is frivolous or which otherwise does not merit compensation, he is not likely to get anything for his efforts – and neither will his attorney.
What about cases that were meritorious, cases in which there was an identifiable medical injury due to medical error? The study found that of those cases, which were about two thirds of the cases in the random sample, there were 27% fewer claims paid than should have been. The cases err in favor of the insurance companies and contrary to the interests of those who have been injured.
The numbers don’t lie. 16% of non-meritorious claims get paid anyway; 27% of valid claims go unpaid. Twenty seven percent of people who are injured by their doctors’ negligence are not compensated, much less given extravagant awards meant to deter future negligence.
The Insurance Angle
Any insurance salesman will tell us that insurance is necessary; it is no longer an option. Insurance preys on our fears of the future combined with our experience of Murphy’s Law. Whatever can go wrong will, at the worst possible time, and will cost more money than we can ever hope to have on hand. Our insurance companies tell us that they are there to make sure that we are not bankrupted by our own negligent conduct toward someone else. Our insurance company is supposed to pay for the actual harm done: the damage to property, the medical bills incurred by someone injured by our actions, the time the person had to be off work and could not contribute to his family’s support, and similar quantifiable amounts.
Truthfully, though, no insurance company is in the business of paying claims. Instead, they look for any and every way possible not to pay claims. And no insurance company is in danger of going bankrupt because it has paid more claims than it has collected in premiums.
Medical malpractice litigation is especially contentious. The medical profession and its insurers have successfully lobbied in several states for shorter statutes of limitations, special notice filings required before litigation may be brought, and additional proof submitted with new filings to substantiate claims. Tighter restrictions and more requirements make filing medical malpractice claims less likely and more costly. Victims have a more difficult time getting into court in the first place.
For example, in 2003 Texas’s governor Rick Perry spearheaded medical malpractice tort reform that capped non-economic damages at $250,000 per defendant, or up to $750,000 per incident. There is no cap on quantifiable economic damages, such as lost wages or cost of present and future medical care. In an Op-Ed piece in the Washington Examiner, Perry declared that malpractice insurance rates in Texas had declined as much as 27% in Texas after these reforms were put into place.
Premiums fall, and doctors are happier. No one likes to pay insurance premiums. Health insurance premiums, and their affordability, is at the heart of the current health care reform being debated so hotly in congress.
Damages as Punishment
Despite the difficulty of quantifying pain and suffering, the damages this article has so far described are compensatory in nature. They compensate the victim for something. The money replaces his car, pays for the surgery to remove the hemostats left in his abdomen by the last surgeon, fixes his broken jaw, reimburses him for lost wages for the time he was off work, pays the value of life that was lost when someone was negligently killed. These damages are meant to make the victim of the tort whole again, not to enrich him. They are intended to put him in the place he was before the tort occurred, and to allow him to go forward without harm to his finances, to heal him both literally and financially.
Tort reform does not address compensatory damages. Tort reform is primarily aimed at capping what its proponents see as excessive jury awards in particularly awful cases. Such awards are not compensatory in nature, but punitive. Punitive damages don’t reimburse someone for money they are out. That is the province of compensatory damages. Instead, punitive damages are intended as punishment – hence, the name “punitive.” Such punishment is levied when there is gross negligence, or something beyond simple inattention or carelessness. The bigger and more preventable the screw-up, the more likely punitive damages are to be awarded.
Why Punish a Mistake?
Why would someone require punishment for a screw-up? Think about how we decide how and whether to punish our children for negligence. Let’s say that Susie and Jenny are at a birthday party for one of their classmates and it’s cake and ice cream time. Susie gets excited explaining something and throws her arms wide, knocking over Jenny’s glass of punch, spilling it on her and ruining her party dress. Of course, Susie has to apologize to Jenny, and she has to get Jenny another glass of punch. She has to help clean up the mess, and if Jenny’s party dress is expensive Susie’s mom might offer to pay for it to be cleaned. These actions are compensatory in nature. They compensate Jenny for the loss of her glass of punch, her clean and dry dress, and her hurt feelings.
If Susie knocks the punch over because she was dancing on the table, though, Susie will be punished. Punitive action will be taken to ensure she doesn’t dance on the table and spill someone’s punch again.
Maybe we put Susie in time-out. Maybe Susie gets a spanking. Maybe Susie is grounded from her Barbies, or she is not allowed to go to any parties for the next month.
The point is not that Susie is being punished for doing something intentionally. She did not. She did spill the punch while being grossly negligent, though. She should have known that if she danced on the table where Jenny’s punch sat, the punch would spill.
Punitive damages are intended to stop gross negligence. They are not appropriate where there is no gross negligence – where the punch spills accidentally due to something unforeseen or where the negligence was minor. Punitive damages are for those egregious cases, for instance those in which the doctor ignored clear warning signs of his patient’s impending doom and did nothing.
Punitive damages are not awarded lightly by any jury. If a jury awards an amount in the millions, it is because the defendant in that lawsuit has the resources to pay such an amount, even if it hurts. Punishment is not intended to kill, and punitive damages that bankrupt a company or a doctor are never appropriate. Punitive damages are supposed to hurt, though – just like being grounded from birthday parties hurts. And just like Susie, the idea is that punitive damages will hurt for a little while, but the defendant will get over it – hopefully to go forth more carefully in the future.
How Punitive Damages are Determined
The idea behind tort reform is that without caps on punitive damages set by law, the sky is the limit. Any lawyer who wants to collect the award his client has been given by the jury knows that is not true. Punitive damages cannot bankrupt the tortfeasor. If the tortfeasor is bankrupt, the punitive damage award gets discharged and will never be paid.
The net worth of the tortfeasor is always an issue. In July 2000 , when that Florida jury awarded$144.8 billion in class action lawsuit brought against cigarette manufacturers, the wealth of the cigarette manufacturers was an issue along with their intentional actions that caused the harm complained of. The press was aghast at the size of the award, wondering if the tobacco companies could possibly pay that amount. Ten years later the tobacco companies are still in business and still selling cigarettes. They may even still claim that smoking doesn’t really cause cancer. Were they punished enough to correct their behavior?
Twenty years ago conventional wisdom placed the amount of pain and suffering at three times the amount of compensatory damages. Jury awards for pain and suffering, as well as for punitive damages, are all over the map. There is no consistency to them. The argument of the lawyers seems to be the determining factor. The more silver-tongued, the higher the award.
Today, jury awards are very erratic. There are extremely high awards and awards that aren’t so high. Sometimes punitive damages are not awarded at all. Other times the award seems astronomical. One aspect of the tort reform movement proposes rules by which punitive damages might be awarded.
Damages by Formula
In his article, “How Should Punitive Damages Work?” Harvard educated law professor Dan Markel of the Florida State University College of Law proposes that juries be instructed in how to assess “extracompensatory” damages. He divides punitive damages into three categories, all of which should be considered. One amount should accomplish “retributory justice,” and should be assessed against tortfeasors whose conduct is found by the jury to be malicious or reckless. If the conduct that caused the harm was neither malicious nor reckless, retributive damages would not be appropriate. In Markel’s proposal, juries would have a “chart of reprehensibility” to establish these damages meant for retributive justice. They would decide on a scale of one to twenty just how malicious or reckless the behavior was, and award damages according to a state-mandated chart. A portion of the damages would go to the injured person and a portion of the punitive damages would go to the state. The purpose of these damages would be to make the defendant tortfeasor worse off than if the harmful action had not occurred.
Next, Markel says, the jury should consider the harm to the victim’s personal dignity. Injuries to personal dignity that would qualify for this type of money would occur only when the tortfeasor’s malicious conduct was directly aimed at diminishing the victim’s dignity. Cases involving slander come to mind immediately. Even corporations can engage in this behavior: think of the employer who makes the employee so miserable that he quits, but not before his professional reputation is ruined and he lands in a psychiatrist’s office because of the way he has been treated at work.
Markel’s third aspect of punitive damages is an amount intended to deter future similar conduct by the tortfeasor. He gives a formula based on how likely the tortfeasor was to escape liability for his reprehensible action. The more likely the tortfeaasor was to get away with what it did, the higher the damage award. For instance, a company fires an employee for failing a drug test which the employee never took, then fabricates evidence to claim that the employee not only took the drug test but failed it. The tortfeasor took steps to avoid liability, and to deter it from trying to cover up such lapses in the future, deterrence damages are awarded.
State Reforms
Different states have different standards for punitive damages. Forty-three states and the District of Columbia allow punitive damages in medical malpractice cases. Some have caps on the punitive damage award and some do not. Only five states prohibit all punitive damages, no matter how egregious the tortfeasor’s conduct.
As noted above, Texas has already capped damages at $350,000, no matter the wealth of the tortfeasor. South Carolina’s legislature is in session today considering whether caps on punitive damages ought to be put in place. H3489 would limit punitive damages to three times the compensatory damages or $350,000, which ever is less. While this seems like a lot of money, would it serve to deter a tort done by Microsoft, the tobacco companies, or a hospital with plenty of insurance coverage?
Alabama allows three times the amount of the compensatory damages, or $500,000, whichever is greater, with larger amounts for certain cases and caps of 10% of a small business’s net worth.
Case law in Connecticut has limited punitive damages to the actual cost of the litigation, including the attorney’s fee. This is the so-called “English Rule,” which means that the loser of a lawsuit pays all the attorney’s fees and costs of litigation. The English Rule is intended to deter frivolous suits and litigation that is more expensive than whatever is recovered.
Kentucky has no limits at all on damages, and § 54 of its Constitution states unequivocally: “The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death or for injuries to person or property.”
What’s the Answer?
Punitive damages serve a purpose. Erratic awards are indeed a fact of litigation. But some conduct is so reprehensible that it needs to be punished, and punished severely. Punitive damages are not intended to compensate the victim, even though the victim will receive all or a part of the award. they are intended for the purpose the name implies: punishment.
Used the right way, punitive damages in all cases, not just medical malpractice cases, are intended to punish and deter future bad behavior. Caps on punishment without regard for the wealth of the tortfeasor or its ability to pay cannot be effective punishment because just like with children, the punishment needs to be tailored to fit both the offense and the wrongdoer. Punitive damages of $350,000 against a small boutique will drive it out of business; the same amount awarded to a victim to be paid by Wal-Mart will never be missed by such a huge company.
Punitive damages are meant to punish. Artificial caps on awards do not take into account the ability of the tortfeasor to pay, and their deterrent effect can be extinguished by awards that are too small.
Tort Reform must proceed carefully and with these precepts in mind, or the entire purpose of punitive damages will be negated and bad behavior will go unpunished.