Finding Motivation

Nine weeks into the semester, midterms are in the rearview mirror, and it's about that time to start thinking finals.   They're still six weeks away, so that may seem premature, that is, until you learn that those tests count for anywhere from 70% to 90% of the grade in any given class.  They are what the whole semester has been building towards.

So I'm looking at class preparation with the exam in mind, doing my best to keep the big picture in view, and asking questions like, "what in this day's discussion and reading is going to be tested, and what might that look like?"

To be honest, this also means I'm less motivated to read cases with the vigor that I brought to them in the first few weeks of the term.  Being able to read them faster also makes me more likely to skim as I go.

So I've brought a motivational speaker into my inner monologue.  Instead of "punch the keys", though, his opening line is "read the cases" (which I imagine is followed by something like, breathe in the facts, let the judges speak to you).

And every so often, when the day's work is done, I hear those cherished words, "you're the man now, dog."

Tyler Durden on Medical Malpractice

We seem to be on a roll with Torts cases this week.

Earlier in the week, we looked at Matsuyama v. Birnbaum, a relatively recent medical malpractice case from Massachusetts.  Matsuyama was the sort of person who could be at risk for stomach cancer.  He had a history of smoking, and he'd spent twenty-four years living in Korea and Japan, countries where the risk of stomach cancer is recognized [see Ikiru...even if you don't care about stomach cancer, watch the film. It might just change your life] and where endoscopies have been recommended to men of my age as part of a physical.

Anyways, Matsuyama changed primary care providers in 1995.  That July, he went in for a physical examination, and he complained of "heartburn and difficulty breathing associated with eating and lifting."  He was misdiagnosed with gastrointestinal reflux disease, and tests associated with cancer weren't run for several years, in which time he made multiple visits.  The cancer wasn't discovered until May 1999, when it was too late. By October, Matsuyama was dead.

The jury found that the doctor had been negligent in not initially diagnosing Matsuyama with stage two gastric cancer. While Matsuyama's chance of living with a proper diagnosis was less than 50%, he still lost something real, and of value.  He lost a 37.5% chance of survival, which dropped to 0 after his disease went untreated.

They awarded his estate full wrongful death damages, which were multiplied by his chance of survival to arrive at "loss of chance" damages, which were added to damages awarded for painful suffering.  The court went on to explain the loss of chance doctrine, which is generally seen as preferable to the traditional principles of providing compensation when the plaintiff was deprived of more than a 50% chance of recovery.  This modified approach allows for something to be recovered when something of value has been lost: in this case, it was a 3 of 8 shot at living.

Compared to the traditional approaches, this modified approach seems fair, since it allows for compensation proportionate to the loss, providing a middle ground for both plaintiff and defendant.   I'm also glad that this case was decided outside of the jurisdiction of one Tyler Durden, who would likely have taken a less favorable view of things.  What would Judge Durden say?

"On a long enough timeline, everyone's survival rate drops to zero."

What Makes An Expert?

We've been spending time in discovery, typically the longest pretrial phase.  During this phase of the law suit, , the parties involved in the suit have to make certain disclosures about the individuals they intend to call as expert witnesses.  That raises the question, "what makes someone an expert?"  Two cases that clarify the requirements for expert witness testimony are Daubert v. Merrell Dow Pharmaceuticals and Kumho Tires v. Carmichael.

The upshot of Daubert is that expert scientific testimony needs to be based on empirical research, following the scientific method.  Experts are allowed to share their opinions in court, but they need to have a basis beyond their degree credentials.  Kumho extends the Daubert ruling to other technical fields of expertise, like tire inspection and engineering.  People with special knowledge can qualify as experts, but they need to show that they base their opinions on recognizable research methods, not just gut knowledge and intuition.

That said, it should go without saying that another person calling you an expert, even if it's your best friend (around 1:30), doesn't make you an expert.

So in the clip above, Mark is correct when he says that he's definitely not an expert.  He doesn't understand women, but his statements about them are broad generalizations based on his experiences and observations, not arrived at through a systematic or  scientific method of study. The real question, though, is would Tommy Wiseau, director of The Room, qualify as an expert on moviemaking?

Art and Life

The back and forth dialogue between works of art and the art of life is something that I treasure.  It's fascinating, unpredictable, and occasionally awe-inspiring. Here's how it played it out the weekend before last (and yes, this will be a little more serious in tone than my last few posts).

After a crazy extended late-night conversation about life, love, and sexuality, where I found myself getting much more honest and vulnerable than I have been in a while, a song came to mind the next morning.  It was "England," by the National.  After looping it on my iPod and in my head for a few hours, I was inspired to do two things.

First, I checked their tour schedule.  They're coming here in December.  I'll be there.  Yes, the show's during the first week of finals week, but after the first exam, a night lost in reverie could be the very thing that keeps me going through the three remaining tests.

Second, the lines about angels led me to think about Wim Wenders' film Wings of Desire.  I had known about the Nic Cage vehicle it inspired (City of Angels) for quite some time, but I didn't know about Wings until last summer, when I read Jeffrey Overstreet's Through A Screen Darkly as part of my preparation for a course on film that I had been asked to teach.  After reading the text, I had to find the DVD, which arrived just in time (literally, the day before I got on the plane to go).  Once I saw it, I knew that I would be working it into the course, as a devotional before a session on image, sound, and the use of color.  When I was reminded of it last week, I knew that I would be working a viewing into the weekend ahead.

It's a beautiful film, very much a meditative piece on life, love, relationships, being human, and the city of Berlin, circa 1987.  The angels in this film aren't your typical cinematic angels, adorned in haloes and white wings.  Clad in dark overcoats,  Bruno Ganz and Otto Sander move through Berlin, watching, listening, and hearing the hearts of the people of the city.  As they hear the voices of the Ganz' Damiel in particular longs to engage in a way that his current role does not permit, and the director allows us to observe the observer as he begins to consider what would happen if he entered the picture.

The film invites dialogue with Christian theology, everyday life, and with our conceptions of life on earth and the afterlife.  Rather than assuming that life in the heavens is to be preferred, and that the spiritual is different from, and preferable to, the physical, Wenders turns those ideas on their heads.  What if the angels actually envied us?  What is it about being human that is so fascinating?  Why not treasure, rather than shy away from, sensory experience? What is it about life on this earth that can't wait for heaven?  And what would it be like to be like a child again?  To recognize specific colors, taste your own blood, and hold a hot cup of coffee in your hands, all for the first time. Those are some of the enduring images that I take from the film, matched by the look of joy on the face of someone for whom all these things are new.  The biblical texts that lingered in my mind are Psalm 8 and Hebrews 2, which place humans a little lower than the angels, yet crown them with glory and honor.  The film brought those texts to life for me, and it reminded me that this life is one to be treasured.

Worthy of my time and yours.

When Helicopters Collide

Criminal liability is a tricky concept, especially when you get into consequences of criminal activity that defendants swear they did not foresee, and that nobody in their situation could have foreseen.  In People v. Acosta 232 Cal. App. 3d 1375 (1991), the defendant led police on a 48-mile high speed chase through Orange County. When police helicopters got involved, two of them collided in midair, and three people died.  Acosta was charged with, and convicted of, three counts of second-degree murder, in part because the chase was both the actual (if not for it, the accident wouldn't have happened) and proximate (it was a substantial factor) cause of the helicopter crash.

Acosta's appeal centered on the issue of whether a mid-air helicopter crash was something that he could have foreseen when the day began.  Injuries to pedestrians or other automobile drivers?  Yes.  Injuries to helicopter pilots?  No.  The court disagreed with him, and held that while this sort of thing had never happened before, it wasn't a "highly extraordinary" result.  His appeal was denied.

Why am I telling you all this?  Well, I don't remember seeing this on the evening news, but it sure reminds me of the movies.  Might've been in the background of this scene or this one.

I think that I may have just found a way to enjoy Michael Bay and Jerry Bruckheimer's movies again.  My idea of a practice exam for Crim and/or Torts: watch The Rock, Con Air, or Gone in Sixty Seconds, and note every act with possible criminal and civil liability.

Repenting After The Fact

In Crim this week, we talked about what constitutes an attempted crime.  What if someone goes to great lengths to plan a criminal act, has a change of heart, and doesn't go through with the deed?  There are a few competing theories about this, and the question of what constitutes movement beyond preparation can spark classroom discussion. 

What's the law?  The model penal code recognizes the possibility of renunciation (5.03), although not all courts do.  Where renunciation is allowed, it has to be voluntary and complete, that is, not compelled by the appearance of law enforcement officers on the scene, forcing you to postpone the attempt until a later date.

Well, what if you suspect that your wife is cheating on you with your boss, and your plan for revenge involves breaking into the company vault and stealing a large sum of cash?  What if you go so far as to carry out that plan, only to learn that your suspicions were mistaken, and that the worst thing that your boss has done is simply having bad taste in statues?  What do you do?

If you answered, "break in again, return the money, and hope that somehow the security tape showing your face will get erased," you've got an ending to your movie, but you don't have freedom from criminal liability.  The abandonment defense doesn't apply to completed crimes.  So as I understand it, breaking back in to return the money would expose you to another count of B&E.  You'd be better off turning yourself in and hoping for leniency, or setting your feet on fire (some NSFW language).