Craziness In The Courts
One of my fantasies as a lawyer is that uniform rules of procedure be set to govern civil and criminal cases. We pursue justice in both fora, don't we? Then let justice be truly blind. Let's place life and liberty in the same scales we use to measure an insurance company's money.
I've called before for meaningful discovery rights in criminal cases. Why, for example, are defendants in Connecticut prohibited from taking depositions of those alleging crimes? Just the other day I cross examined a ten-year old who, remarkably, changed her account of the events she claims occurred years before. At an earlier taped interview she said she'd been molested in a one room of her home as her younger brother say by. At trial, the brother was no longer present, and the molestation was a lurking fury, moving from one room of the house to another.
Such inconsistencies in a case involving an adult could be fatal. But in a case with a child, hey, the state argued, whatever version of her testimony you believe supports the conviction, so what's the harm? Besides, the state's expert disclosed a day or so before trial explains it all away. Delayed disclosure and incremental disclosure account for anything and everything awkward in a child's testimony.
Those experienced in the ways of protecting Allstate's money in car accident cases will sense the outrage here. Such floating claims as we routinely permit in criminal cases do not make it into a jury room while we lie about whose money is on the line. We don't permit this sort of insanity in the civil courts.
But we permit all sorts of other craziness in the civil courts. Plaintiffs and defendants often become unhinged during the course of litigation. And when that happens, the civil courts are at a disadvantage. We lack the ability to have competency hearings done when one of the parties slips a gear or so.
In that respect the criminal courts deliver a higher quality of justice. At least a hearing can be ordered to assure that a defendant understands the nature of the proceedings against him and is capable of assisting in her own defense. Of course, when the state goes off half-cocked there's nothing anyone can do. You can't quite request an mental examination of a legal fiction. Prosecutors, as we well know, are immune from almost every kind of scrutiny.
In a few weeks, the rules committee of the Connecticut Superior Court will hold public hearings on the use of independent medical examinations in the civil courts. The rule they propose does not go far enough, but at least they are close to thinking about reality in the courts.
When a plaintiff seeks damages for personal injuries, a defendant can request an independent medical examination of the plaintiff's physical and mental health. The judges want to make it crystal clear that a plaintiff has the right to object both to mental and to physical examinations. When such an objection is tendered, a judge must then decide whether to permit any examination at all.
Predictably, the Connecticut Trial Lawyers Association raises alarums. It wants the rule tightened because it believes it is unfair to require a party suffering mental incapacity as a result of a defendant's negligence to be required to submit to an examination. This sort of magical thinking discredits the plaintiff's bar. Does the association really believe that a plaintiff should be able to claim injury and then deny a defendant the right to explore whether the injury was really caused by the defendant's conduct? There's a word for that: goofy.
A better rule would permit the either party in litigation to request a psychiatric examination of a party in the litigation upon a showing that reason has taken flight. Judges and lawyers privately bemoan the extent to which the mental health issues of parties clutter dockets and yield waste. Yet in the civil courts, we are powerless to address these issues. Amending the rule to permit any party to request an exam of the another when, for good cause shown, it becomes apparent that mental illness is driving litigation would be a better rule.
I hope the judges are not intimidated by CTLA and do the right thing. There's just too much craziness in the courts. We all know it. We just don't talk about it.
Reprinted courtesy of the Connecticut Law Tribune.