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February 1, 2013

Conflict Attorney Fees
I read Adam Patton’s letter in the January 1 News with a great deal of interest. Mr. Patton apparently believes the fees that are being provided pursuant to state law to private conflict counsel are far too generous and that assistant state attorneys, such as himself, should be compensated accordingly.

As a private attorney who accepts flat-fee conflict appointments, I would be happy to advise that these generous payments from the JAC are not pure profit. Law offices have a great deal of overhead, including office rental, phone/Internet/utility bills, computer and office supply bills, Westlaw/Lexis legal research bills, payments for office staff/associate salaries, payments for employee benefits such as health insurance and 401(k)s, and, of course, tax payments to the various levels of government, and I could continue to go on at length.

So while some may believe the fellow at the counsel table across from them is pocketing $2,500 to their meager $65, I can assure them that’s not the case, and the other fellow may actually be looking at the assistant state attorneys, with their freedom from responsibility for the above-noted expenses, with as much or more envy than they may have for him.

Gregg R. Brennan

Med Mal Experts
Once again the Board of Governors reminds us why the public places the ethics and integrity of the legal profession beneath that of used car and snake oil salesmen. Rather than inject intellectual honesty into judging scientific medical testimony, the board obfuscates an important issue with irrelevant and meaningless boilerplated arguments attempting to assure medical malpractice remains nothing more than a legalized redistribution of wealth.

The idea that independent peer review of medical experts would “chill” testimony is laughable. Physicians daily are subject to peer review, a proven method to ensure delivery of evidence-based medicine. The only testimony “chilled” will be that of experts routinely retained and paid well to lie and testify far beyond the purpose of aiding a jury to understand complex medical issues. Federal law currently establishes the right of medical societies to demand ethical standards for expert testimony in order for those experts to retain membership in those societies. That same law allows those societies to sanction experts should their testimony breach those guidelines. The process is proven.

The belief that judges routinely retain the right to exclude testimony is absurd, regardless of the written rules of evidence. Indeed, it is precisely the abject failure of the legal system to control lying experts in the quest to redistribute wealth that has led to the call by many for better review and control over expert testimony. This outrageous problem prompted Judge Robert Andrews to opine, “It’s gotten as bad as it can get,” referring to hired guns. The judge also refused to allow the testimony of an expert “who wouldn’t know the truth if it lept (sic) up and bit him. . . .” A subsequent lawsuit by the expert against the judge claiming a violation of First Amendment rights and defamation, among others, was dismissed. You cannot make this stuff up, folks.

In my district, the single expert on causation for a plaintiff was unable to provide even a scintilla of evidence to support his opinion — no medical text, no treatise, no published case study, not even the testimony of another expert. In a stroke of genius, the trial judge disallowed the testimony. Not content to watch a brain-damaged baby case slip through the cracks and possibly with it millions of dollars, the Second DCA reversed, arguing as long as the expert is qualified under the Florida Statutes, that expert’s testimony is, well, his opinion and he is entitled to it.

No doubt should those same judges find themselves hospitalized with a witch doctor frolicking and chanting beside their bed, they might rightly ponder the competence of their health providers. But, as long as that doctor has a medical degree and is qualified, it is his opinion how best to treat the judges, witch doctor or not. Such is the bar placed on expert testimony in the Second DCA and, sadly, most everywhere else in this state. Thankfully, the judges need not worry they might find themselves in such a precarious situation — you see, peer review of physicians prevents this sort of thing.

But not in the legal world, where experts with the proper credentials may opine to practically whatever they wish regardless of its absurdity, and thus that testimony becomes a question of fact for six jurors who most assuredly know nothing about medicine thanks to voir dire. Oh, if we wish to discuss constitutionality, whatever happened to the right to a trial by a jury of one’s peers? We seemed to have misplaced that somewhere during our quest for the legalized redistribution of wealth, along with every other common sense rational means of reeling in lying experts at the state level.

The legal profession is the only major profession regulated solely by itself. No other profession enjoys this “privilege.” Ultimately, every issue involving a lawyer at the state level is finally resolved by each state’s supreme court made up of, well, other lawyers. Our profession is quick to demand others regulate themselves, “lest we do it for you.” Pot, meet kettle.

Where have all the honest attorneys gone? How can lawyers genuinely think we know how to regulate medical testimony when many who argue so vehemently against a common sense solution know nothing about evidence-based medicine, which is the standard for medical practice and testimony?

This is not a plaintiff versus defendant issue — not even a lawyer versus doctor issue. It is a right versus wrong issue where far too many on the wrong side care nothing about truth, honesty, and integrity, but about preserving a system where physicians are judged not by the standard with which they are required to practice, but a standard where liars mock truth and justice, are rewarded handsomely for it, and help preserve the public’s disdain for the legal profession. If hired guns practiced medicine to the same (lack of) standard they often testify, they would commit malpractice daily.

With the board’s recommendations, I am left to ponder whether judging physicians’ practices though an intellectually dishonest and morally corrupt means is truly that bad. Or, possibly considering whether being forced to send money yearly to an integrated state bar in order to practice law might be far worse, when that bar makes it clear they have no intention of supporting a much-needed overhaul of the morally corrupt and ethically challenged, not to mention intellectually dishonest, method we currently have for judging expert testimony in medical malpractice cases.

Robert William Patton

[Revised: 02-04-2017]