Ask a Medical Malpractice (Defense) Lawyer

[TheRealJoeFish]

Have you ever met any law speaking guys as bad as Lionel Hutz?

You know, I wouldn't really know, because I've only ever watched a handful of Simpsons episodes. (Outrageous, I know.) I at least knew enough to recognize that "Lionel Hutz" is the bad awful lawyer from the Simpsons. Umm... some lawyers are definitely bad. There aren't really any hilariously incompetent lawyers (lawyers like that don't really get work), but there are sort of two classes of bad lawyering. Sometimes, you see lawyers who are good and competent in general but don't prepare for any specific case, kind of going into court and saying, "your honor, I'm here today because it's an absolute travesty that Mr." <looks down at paper to find out his client's name> "Jones is being made to" <looks down at paper to see what the case is about> "pay this parking ticket." Not, you know, literally like that... but sort of. This actually happens to some very good lawyers; they get to the point where they represent a few big corporate clients in a bunch of trials, but there's so many that they don't have time to really dive into the case until the week before it starts (which is not a recipe for success). There's a second group of lawyers that, for whatever reason, just don't seem to know the basics - they'll file briefs or motions that aren't permissible, they'll bring claims that are clearly not allowed under the law... this happens more to new attorneys, especially solo practitioners. This is because, in the US at least, Law School teaches you about the law but absolutely does not teach you how to be a lawyer. Only a few states still have apprenticeship-type requirements (and these are less about making sure lawyers are competent and more about artificially suppressing the number of lawyers), so if you graduate law school and start off on your own, it's understandable (though not excusable) that you'd really not know some basic stuff unless you have experienced lawyers in your personal or professional life.

Also, how long before you make barrister and get to wear a wig?

Never, to my undying sadness. That doesn't happen in the USA. America is anti-wig. I may try to become a judge someday (at least 20 years down the road), in which case I'll get a robe and a gavel... but still no wig. I could always buy my own, I suppose - if anyone calls me out on it, I'll kick them out of my courtroom

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Hmm... I'm not really familiar with this terminology (misadventure). It's not really used in the USA. Elaboration plz?

This explains it a bit. 

http://www.burtonreport.com/infforensic/...neglig.htm

Ah, mmkay.  I guess it is used in the USA, just not in my neck of the woods (be it geographically or professionally). 

So, it sounds to me (from that) as though "misadventure" is more the sort of "mistakes happen, and even though you goofed up there wasn't really anything we could've done to prevent this" type event, whereas "malpractice" is more the sort of "mistakes happen, but this one shouldn't have if you had made a better decision."  Which kind of goes back to what I said in an earlier response (that we should be working to 1) eliminate the latter of these while 2) ensuring a system of fair compensation for the former).

It's hard for me to say what the ratio is, partly because I haven't done this long enough, and partly because that's a pretty fine distinction that I'm not necessarily qualified as a non-doctor to answer (and which isn't tremendously relevant to me professionally, inasmuch as both are classified as "negligence" and "malpractice" in legal terminology).  I would say the majority of cases I see are of the "malpractice" sort rather than the "misadventure" sort, though I would venture that this is in part because "malpractice" goofs will almost always result in a lawsuit, whereas "misadventure" goofs are more likely to be resolved or forgiven or such before it gets to the lawsuit stage.  That's speculation, though - the answer is "I don't really know."