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Disasters Happen

Earlier this week we had a snowstorm. Traffic on I-95 ground to a halt. It took Senator Tim Kaine 27 hours to get from Richmond to Washington, a hundred miles. This story has been all over the news.

It was an awful situation and it is a good thing no one was seriously injured or killed.

Now, of course, we have the blame game. The governor has been faulted. The governor then blamed ignorant drivers for not heeding warnings. Even the governor-elect has taken heat - even though he isn't even in office yet. There is all sorts of finger pointing going on.

Of course, all this makes me think about what I do for a living. As a malpractice trial lawyer, I deal with medical situations after the fact. The dust has settled and we are just sorting out who is responsible for whatever bad outcome that has occurred.

Looking back it's easy to say what could have or should have been done. That's not the standard, however. The law is supposed to judge conduct based the reasonableness of one's action at the time.

That distinction seems clear cut, but it actually gets very blurry very fast. Anyone in this business figures that out quickly.

Jurors often think it is unfair to judge someone with the 20-20 perfect vision of hindsight - and they are quite reasonable in that regard. Doctors sometimes decry being evaluated through the "retrospectoscope" - and their concern is also reasonable.

Jurors understand that anyone, including a doctor, can do everything right and still have a disaster. A bad outcome does not prove a mistake.

One big difference between good trial lawyers and great ones is the ability to keep a case firmly "in the moment." Doing so is how you make even quite complicated medical cases credible in the eyes of a jury.

As for the I-95 debacle, I am not a huge fan of our outgoing governor, but blaming him for this mess seems like a stretch. On the other hand, his blaming motorists strikes me as silly. But, he is a politician so my expectations on that end are rather low.


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