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Letters to the Editor

Choking on Pepto Bismol

A response is definitely warranted regarding Daniel Hess' diatribe against "outrageous judgments" that "gave (him) indigestion" (November). While he's downing that Pepto Bismol, he should recall what he must have learned in law school.

First, contrary to his assertions, the public doesn't bear the costs of punitive damages against the state and municipalities. Public entities are not subject to punitive damage awards.

Second, Hess complained about an injured baby receiving $43.5 million for "the inherent value of a human infant's life." This is also incorrect. Tragically, under California's 1975 MICRA law, in medical malpractice cases, human suffering is limited to $250,000. The economic component is also reduced to periodic payments which terminate upon the death of the victim. Maybe $43 million seems like a lot, but I'm sure this amount was based on evidence presented as to the child's lifetime of medical care. Would Hess prefer the state pick up the tab instead of the entity or person who caused the damage?

Third, he questions whether or not individuals will ever take responsibility for injuries. I guess corporations that cause injury or death don't need to take responsibility. In any event, Mr. Hess must have also missed the class on the "comparative fault doctrine." Yes, there are abuses in the system, but as lawyers, we need to understand the fundamentals of tort law and its function in society.

Bruce M. Brusavich
Consumer Attorneys of California

Shill for insurers

After reading Hess' regurgitation of the same old tired arguments, I had something more violent than indigestion. Hess is obviously a shill for the insurance companies in his bemoaning of "excessive" verdicts. He seems to forget that in every trial in which there is a large verdict, there were also defense attorneys fighting against the verdict. If a jury, after a long trial, decides that a defendant's behavior is outrageous enough to punish it with large damages, who are we, who did not hear the evidence, to argue?

Punitive damages exist precisely so that big corporations and other powerful beings will be afraid of running roughshod over the public. If we limit their liability, we will give them carte blanche to include as "acceptable losses" any minor damage awards from illegal or dangerous behavior.

And no, I am not a plaintiff's lawyer. I'm a public defender, and I have seen what happens when you give virtual immunity to a bad actor. They not only don't learn their lessons, they go out and do more bad acts knowing their behavior will never cost them much.

Mark C. Bruce

Refreshing point of view

Right on, Mr. Hess! "Indigestion from outrageous verdicts" was a refreshing article from a lawyer. It's seldom that a member of the bar speaks out on what is seen across the country as an attempt by California to self destruct. It's one of the reasons my wife and I moved to New Hampshire.

Ron Goodgame
Wolfeboro, N.H.

Must have missed con law

I cannot tell if Mr. Hess' opinion piece is meant to be serious or more "outrageous" than the verdicts he lambasts. Can anyone seriously suggest that only those "in serious criminal trials" be afforded a jury trial (Mr. Hess must have slept through con law during law school), or that governmental immunity be granted for all but the most egregious of circumstances?

Often the only way an aggrieved party can seek justice is by hiring an attorney and bringing a lawsuit.

For each person who gets that big verdict there are hundreds more who could not get an attorney to represent them because while the claim was good it was too expensive and prohibitive to bring a lawsuit. In a country where there are Enrons, WorldComs and greedy unprincipled CEOs you need plaintiff attorneys. I have a better solution: promote ethical and responsible behavior and then there will be many less potential plaintiffs and less "outrageous" verdicts.

Susan K. Chelsea
San Diego

Careful what you wish for

I am perplexed. How does Hess' outrage over what he perceives as excessive and wrong-headed civil verdicts lead to his suggestion that most criminal jury trials be eliminated? Is he advocating the repeal of the Sixth Amendment or is he simply ignorant of its existence? And he calls this a pragmatic and equitable solution that the State Bar and Sacra-mento should implement if only they could overcome their self-interest and greed!

If this is a joke, I don't think it's very funny. At a time when the Bush Administration is attempting to abrogate virtually all civil liberties in the name of security, we don't need the California Bar Journal publishing such nonsense. Someone at the White House might read it and say: "That's a good idea!"

Herbert Weiss
Los Angeles

Better left unsaid

In response to Daniel Hess' diatribe: First, he overlooks the fact that many such verdicts are reduced on appeal. Second, his proposal to eliminate jury trials in civil cases indicates that he is an elitist who doesn't trust people outside his socioeconomic class.

Third, apparently he believes that intentional gender discrimination (which was proved to the satisfaction of the jury, not just alleged) is not as serious as "criminal or grossly negligent conduct." I doubt he would feel that way if he was a woman.

Fourth, apparently he believes that DNA evidence is infallible; it is not. DNA analysis compares a number of genetic markers; it does not compare the entire genome of two people. And what does DNA evidence have to do with the civil verdicts which prompted his editorial, anyway? My advice to Mr. Hess is to keep his uninformed, biased opinions to himself.

Tyler Trent Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School

Dumping on the Constitution

While we're at it, let's burn the Bill of Rights and the U.S. Constitution.

Craig Klein
San Diego

What a joke

Hess' opinion is hilariously idiotic. It is a little bit scary that he possesses a law license, since it appears he considers it legitimate to draw conclusions about undoubtedly complex factual situations based upon no greater evidence or explanation than one-sentence summaries of cases in the Trials Digest section of your journal, and seems not to have much knowledge/appreciation for such niceties as the U.S. Constitution.

His suggestions for change include summary revocation of the constitutional right to a trial by jury except in "serious felony" cases. So, I guess only murderers and vicious criminals would be entitled to hang onto this fundamental right given to us all by the Founders. I am also curious why those least able (in most cases) to afford it are the only class of litigants whom he proposes should be subject to his loser-pays-all rule. I guess such a rule should not apply to corporations or other businesses who, according to the most recent available Judicial Council statistics, are really the ones filing more lawsuits.

As a provocateur, Mr. Hess is talented. I would expect more informed analysis from an attorney, however, instead of mere recitation of the marketing mantra repeated for years by those with huge amounts of money to make by deforming the jury system.

David C. Byers

Save those memories

I was struck by the convergence of an article and letter to the editor in November. Ayleen Ito Lee related important historical information about her father, Kenji Ito, the first Japanese-American internee admitted to the State Bar. You also reported on continuing efforts by many to preserve California legal and judicial history.

Many, many of your readers, like Ms. Lee, have relatives who have been judges, lawyers, secretaries, court clerks and litigants whose stories can and should be preserved for the benefit of all State Bar members.

I strongly encourage all current and former State Bar members to preserve and share documents, photographs and stories by or about their relatives connected with the law. Too often descendants have tossed the proverbial trunk in the attic because they thought the old papers were worthless.

Third District Court of Appeal

Kudos for history

I very much enjoyed this issue, especially Women in the Law, Changing Expanding Profession, Notable (bios) and four attorneys whose careers spanned seven decades. It is great to be reminded of and informed about the pioneers of our profession.

Thank you for researching and presenting these histories and biographies.

Sandra Blair
San Francisco


You listed Judge Richard Paez ("Celebrating 75 Years" supplement) as the "first Mexican-American to become a federal trial judge in Cali-fornia," citing 1994 as the time of that event. Unfortunately, your research is faulty. Judge Irma Gonzalez, who is clearly a Mexican-American, was sworn in as a United States District Judge in San Diego in 1992.

Robert S. Brewer Jr.
San Diego

Oops again

Thank you for publishing the article about this most deserving award (Jack Berman award). I am familiar with this modern day Alien Land Law case and the important legal, historical and community issues it presented. One correction: the article twice mistakenly refers to the YMCA, rather than the YWCA, which was the party holding paper title to the disputed property. The YMCA was and is a separate entity.

Robert Rusky
San Francisco

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