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July|August 2005
City of Blight By Geoffrey Gagnon
The Fourth Man By Margot Sanger-Katz
A Place to Crash By Aaron Dalton
A Man's Home Is His Castle By Elizabeth Austin
Cases & Controversies
The Prudent Jurist By William H. Simon

The Prudent Jurist

Arizona recently passed a law that prevents malpractice plaintiffs from using doctors' apologies in court. Proponents of the law say that many doctors avoid apologizing because they fear extra liability, and they hope the law will lead to more honest dealings between patients and doctors. Should apologies get such a shield?

By William H. Simon

THE GOAL IS ADMIRABLE, BUT I DOUBT THAT THE STATUTE will help much. It's true that doctors are often afraid to say they're sorry because they fear it will expose them to liability. But in other states that have passed apology shields, lawyers continue to advise against expressing contrition. As they see it, the terms of the evidentiary privilege are limited and ambiguous, and they'd rather their clients play it safe. The lawyers feel there's too high a risk a doctor will say something that will turn out not to be covered by the privilege.

Nevertheless, there's some evidence that doctors who want to do the right thing can prudently go ahead, even without the protections of a statute. Ever since an experiment at the Veterans Affairs Medical Center of Lexington, Ky., in the early 1990s, many doctors have decided that routine disclosure and apology is sound practice. Apologies do provide ammunition that plaintiffs can use in malpractice trials. But they also alleviate hurt and suspicion, and experience suggests that these emotions are major inducements of litigation. The Lexington experiment showed that a policy of openness about mistakes didn't end malpractice claims, but it did make the claims easier to settle and, overall, it reduced litigation expenses. This seems to be a case where virtue, besides being its own reward, has a material payoff.

A Massachusetts man was allowed to represent himself at his trial for attempted murder, shortly after he was released from a state mental hospital. Thomas P. Budnick, a space enthusiast, was arrested after giving his friend a bottle of meteorite-cleaning acid to drink. Budnick was convicted of a lesser offense, a decision he has appealed on the grounds that he was the victim of incompetent representation—by himself. How should judges proceed when defendants who are unmistakably odd demand to argue their own cases?

ACCORDING TO THE UNITED STATES SUPREME COURT, a defendant who is mentally competent to stand trial is mentally competent to refuse counsel and represent himself. The trial judge found that Budnick understood the charges and the nature of the proceeding. That was enough to establish competence. To force him to be represented by someone else over his objection would make defense counsel just another state official rather than an agent of the defendant.

Budnick cannot plausibly claim "ineffective assistance of counsel" on appeal because he waived his chance to have counsel, and, unlike the right to representation by an attorney, the right to self-representation is not a right to effective representation. Still, you would hope that if Budnick's appeal demonstrates that important evidence was not considered at the trial, the appeals court would find a way to grant a new trial. Budnick may deserve his fate, but the public has an interest in the system's integrity, which would be undermined by the conviction of an innocent person.

Many New York State judges employ variations of a practice pioneered by Judge Harold W. Rothwax in which they encourage criminal defendants to consider plea offers that are presented as one-time propositions. The state's commission on judicial conduct is investigating this practice, due to concerns that it coerces defendants into pleading guilty to crimes when they might be better off going to trial. Should judges ever recommend agreeing to a guilty plea?

A JUDGE WHO ADVISES A DEFENDANT to accept a plea offer from the prosecutor raises two red flags. First, the judge is suggesting that the sentence she would impose after conviction at trial would be harsher than the prosecutor's offer. Judges are obliged to remain open-minded about the outcome of a case until the relevant evidence has been presented in court. Any recommendation to accept a prosecutor's offer can be seen as unfair prejudging.

Second, judges are under constant pressure to clear their dockets, and they have an obvious self-interest in avoiding trials. Whenever a judge tells a defendant to skip a trial, it is natural to suspect that she doesn't have the defendant's best interests at heart.

However, forbidding a judge from sending signals about plea offers carries a disadvantage. It deprives the defendant of information that is potentially valuable in deciding whether to accept a deal. Prohibition would be more advisable if courts would make greater efforts to help defendants predict their likely sentences. If courts collected intelligible information about sentencing decisions for different categories of cases and made better efforts to reconcile inconsistencies among judges, defendants would not need ad hoc signals from their trial judge. Given our current, often unpredictable system, forbidding the practice is probably a bad idea.

William H. Simon teaches professional responsibility at Columbia Law School and is a contributing editor of Legal Affairs.

Questions for the Prudent Jurist can be sent to prudentjurist@legalaffairs.org.

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