That’s a new low

Ted Frank has scribbled out a screed entitled Lawsuit abuse kills puppies.  Hear that world?  Lawyers will kill your dogs!

Blogger Rogier von Bakel is furious (via Balko (h/t Slim)) at his local SPCA because they would rather put a dog to sleep than place it with his family with small children. See, they’re worried about getting sued if the dog bites one of the children. von Bakel can’t believe it: he’s even willing to sign a waiver!

His anger is misdirected. The SPCA didn’t kill his dog; trial lawyers did.

I should not be surprised, because the war against lawyers is not the product of logic or reason, or indeed even truth.  Linking back to the start of this whole sad situation, this is the un-partisan version of the story.  In long form.

First, it was not a puppy, it was a 100 pound St. Bernard.  On one level, this is unimportant.  What follows is not made better because the dog was older.  But let’s call Frank on what he is doing, he is deliberately twisting the facts for maximum emotional effect.  We all do it, but Frank twists past the breaking point.  Oh, he never claims that this was a puppy, just that TRIAL LAWYERS KILL PUPPIES!  Presumably in the dark of night.

Moving on, Rogier van Bakel tried to adopt a dog at a SPCA shelter.  He’s basically is told that his application to adopt will be rejected, no matter what he says.  Things go down hill from there.

“We will evaluate your application,” she insists, regaining her hauteur only to give the game away again: “Though frankly, your children didn’t seem that interested in the dog.”

What’s this now — she knows our kids better than we do? They should have stormed in shrieking with excitement and dying to hug anything on four legs? Should we tell her that when we asked our four-year-old to make a wish list recently, this sensitive kid with a big heart put “having a dog again” near the top? Nah. What’s the point? This is going nowhere, and maybe we should just skedaddle.

But now, a tall man wearing an SPCA shirt steps forward — we later learn that he is executive director Doug Radziewicz. “You should understand that we don’t know most of these dogs’ backgrounds,” he says. “It’s for everyone’s own good. We want to be sure that adoptions are successful, both from the point of view of the dog and the point of view of the family.”

I think about this for a moment. It sounds eminently reasonable and illogically fishy at the same time. Putting aside for now the disingenuousness of being told to fill out an application that is sure to be rejected, I tell him that two things bother me. Of course the SPCA doesn’t know the provenance of most of the animals it shelters. That’s a given. But to tell families with kids that they can’t adopt a dog whose history is the least bit murky — even a dog that the SPCA itself describes as friendly and affectionate — is, in my book, a disservice to both the families and the animals. And also, I say, I just don’t take kindly to people making unbidden decisions on my behalf, presuming to tell me what’s best for me, my wife, and my kids. Would he?
This goes on for a minute or two: Radziewicz, increasingly irate (as am I, frankly), painting a picture of adopted psycho dogs that sink their teeth into a child and asking how that would “look” for the SPCA; me trying to get him to respond to my two points. Then he cuts me off: “That’s the way we do it. You don’t like it?” His voice now booms with indignation. “Then you should LEAVE!”

Some more words are exchanged, tempers flare, von Bakel leaves.  Later, the dog is put to sleep.  von Baker is understandably annoyed, blogs, and points out a number of things he finds wrong with the whole situation.  Among them, that he is the best judge of what his kids care about, how ridiculous it is to categorically declare all dogs of unknown background unsuitable for children, that his family have adopted dogs quite successfully on two separate prior occasions, how because they have adopted children he and his wife have had to under go much more in-depth examinations of character, and how he is even willing to sign a waiver relieving the SPCA of liability.

But it’s the last that Frank latches on to.  Here comes the twisting:

Courts’ failure to recognize the right of parties to contract out of excessive liability means that the SPCA has to protect itself against attorneys, and can only do so if they avoid situations where they might be sued. With 20/20 hindsight, the would-be John Edwards will say to a jury: “The SPCA has placed other dogs that bit small children and has been sued for it, yet they continue to place dogs with small children!”, and demand punitive damages.

There is nothing, nothing at all, in the post that suggests the issue that prevented von Bakel from adopting was the fear of liability.  In fact, von Bakel talks about a willingness to sign a waiver, but as far as I can determine that offer was never made, nor was the issue of liability ever discussed with the shelter at all.

Frank wants the issue to be liability, he wants you to think that it was the SPCA so fears lawsuits that they turn away loving families, even though nothing except his world view suggests that.  It instead appears, from both posts, that this is a case of small-minded people being granted a little authority and running rampant with it.  The implication of the article, and the clear statement of some of the comments, is that a decision had been made in some back room by controlling people.

That’s not all he wants.  He also wants to gloss over some inconveniences, like the jury system.  Look at the above statement, you get the clear mental image of slick-trial lawyers (handsome ones, like John Edwards, who gets a name-drop for some reason that surely can’t be damning the whole Democratic party by association) demanding punitive damages from juries and that’s it.  Of course, for punitive damages to be awarded, the jury has to be convinced that the shelter behaved negligently and ignored their duty of care, and that they behave especially egregiously.  Frank has the solution though, take the matter out of the jury’s hands, since we can’t trust ‘em.  And we need to alter the whole legal system in the process:

The long-term solution is to insist on elected officials who will appoint judges who respect freedom of contract, and who will pass tort reform measures that put common-sense limits on the power of courts to interfere with every-day activity.

Apparently, convening a jury to determine whether negligence after the fact is “interfering” in day to day activity.  Whereas having a legislature throw a blanket limit on juries ever deciding that conduct has gone beyond negligence to truly abhorrent behavior, which is what punitive damages are for, is just fine.  I know I much rather would have a legislature make blanket decisions as opposed to people who are presented with all the facts of a case.

What is happening here is that Frank is revealing the contempt advocates of tort reform and mandatory arbitration have for Americans and American justice, respectively.  Advocates of this sort feel that you can’t trust juries when they are made up of the average American.  Maybe they are too easily swayed by emotion, maybe they are just too dumb, maybe they just hate businesses.  Either way, tort reform is about reducing jury power.  Of course, it is impossible to sell that to Americans, we believe in our jury system, and we don’t take kindly to being told we’re not smart enough.  So tort reforms sell it as trial lawyers preying on the unsuspecting, leaping out to extort people, sometimes killing peoples pets, and conveniently leave out the whole trial aspect of the process.

Looking this over, I realize that this is by far the longest post I’ve ever put up.  It is annoying enough to have read this kind of wrongheaded screed, but it gets worse when such screeds are based on clear manipulations of fact.

But who needs facts, when you can claim a lawyer killed a puppy.

Posted in Law, Ramblings