Facts and truth-telling matter — in dramas, governance, health, and the law

govtrustpew-181x300It’s a small occupational hazard that accompanies membership in the Bar — the ribbing that all lawyers take at social functions with those groan-inducing lawyer jokes.

While the good-natured jests typically merit a chuckle and a pass, it’s worth noting, two decades after the 9/11 tragedy and with all the deeply divisive events that have occurred since, that there are clear indicators that the legal profession deserves more credit than jibes. Lawyers are striving at least to preserve their constitutional responsibilities as a pillar of truth-telling in the contentious world. Others? Maybe less so. And the public should not be confused about this.

When viewers see the splashy Netflix documentary Worth, for example, they should take judicial notice that it creates a fictionalized account about trial lawyers and the push to compensate victims of the Sept. 11 catastrophe, argues the Center for Justice and Democracy at New York Law School.

The group, headed by executive director Joanne Doroshow, emphasizes that — contrary to the dramatized depiction, starring Michael Keaton, Stanley Tucci, and Amy Ryan — trial lawyers were at the forefront of efforts to financially assist 9/11 victims and their loved ones without charging any fees. They leaped in to help, long before the well-known mediator Ken Feinberg became administrator of a compensation fund, the center says, writing in a fact sheet:

“[Worth] is full of typical fictional devices often used by filmmakers to heighten drama and keep audiences interested. Unfortunately, this film’s inaccuracies are now part of the Sept. 11 historic record – a record that is important to correct when possible. One way the film does a terrible disservice to 9/11 history is its portrayal of the trial lawyer community following the attacks, embodied in the fictional character ‘Lee Quinn.’ Quinn is the film’s villain. Sitting around a table with U.S. senators and Feinberg (long before Feinberg was actually involved), Quinn is shown having problems with the Fund concept. It also portrays him throughout as constantly threatening to undermine the Fund and the U.S. economy by signing up victims to sue the airlines. This is not just a slight fudging of facts. What happened 20 years ago was the exact opposite: It was the trial lawyer community who thought up the Fund and insisted it be part of any airline bailout legislation. Without them, there would have been no Fund at all …

“The trial lawyer community fully supported Feinberg’s work to compensate Sept. 11 victims. As shown at the end of the film, Feinberg went on to administer many other kinds of victim compensation funds, sometimes to deal with other unique national tragedies …”

The center also draws a more nuanced picture of Feinberg’s career and compensation funds, arguing that these elements could have expanded public consciousness about the challenges for society in helping those who have suffered great harms — rather than furthering falsehoods about trial lawyers.

Facts on slippery slope post 9/11

Being straight with the facts and honest with what they mean has become a monumental challenge for this country and the world since 9/11, argue other documentarians from the PBS program Frontline.

The investigators on this show, who have put forth more than 200 programs that they say have won every major journalism and broadcasting award, including 93 Emmy Awards and 24 Peabody Awards, say that the fog of war that shrouded the nation after the World Trade Center attacks has led this country on harmful paths. These have resulted in the just-ended U.S. war in Afghanistan, as well as the invasion and occupation of Iraq (remember the never-found weapons of mass destruction?).

The country has gone from the unifying tragedy of the 9/11 attacks to a seemingly endless, ill-defined, and disillusioning war on terror — while failing to see that this, in turn, has spawned so much disinformation and mistrust that America now wrestles with its own insurrectionists on its own soil.

We’re haunted by not only outbreaks of homegrown violence at the U.S. Capitol but also daily infighting about a lethal coronavirus pandemic and common-sense measures to end a scourge, which, by February of this year alone, had killed more of us than the number of Americans who died in World War II, Korea, and Vietnam combined.

As Frontline and others have reported, Americans, since a highpoint just after 9/11 (see Pew figure above) have lost much confidence in their political leaders (both in the White House and Congress, as well as in state houses), military brass, business executives, and, yes, those who sit atop the world’s largest and most profitable health care system. The news is full of hand-wringing reports and commentary about what the media should do about its extreme outlets and their destruction of journalistic credibility. Doctors are coming to a tardy reckoning about the detrimental roles that its high-profile practitioners have taken during the pandemic and whether they should be disciplined.

The legal profession — to its credit — has been clear and transparent in increasing fashion that it will not accept the flouting of norms, notably trial courts’ absolute and necessary reliance on facts and provable evidence. The New York and Washington, D.C., Bar groups have suspended a prominent attorney from practicing in their courts, finding he failed to adhere to professional standards of truth telling. (Full disclosure: I’ve filed Bar complaints against three D.C. lawyers for actively participating in lawsuits trying to overturn the 2020 Presidential election.) A Michigan federal judge rebuked and recommended professional sanctions as well as remedial legal education for a passel of lawyers, finding they had abused the civil justice system, writing:

“America’s civil litigation system affords individuals the privilege to file a lawsuit to allege a violation of law. Individuals, however, must litigate within the established parameters for filing a claim. Such parameters are set forth in statutes, rules of civil procedure, local court rules, and professional rules of responsibility and ethics. Every attorney who files a claim on behalf of a client is charged with the obligation to know these statutes and rules, as well as the law allegedly violated. Specifically, attorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable …

“While there are many arenas—including print, television, and social media—where protestations, conjecture, and speculation may be advanced, such expressions are neither permitted nor welcomed in a court of law. And while we as a country pride ourselves on the freedoms embodied within the First Amendment, it is well-established that an attorney’s freedom of speech is circumscribed upon ‘entering’ the courtroom. Indeed, attorneys take an oath to uphold and honor our legal system. The sanctity of both the courtroom and the litigation process are preserved only when attorneys adhere to this oath and follow the rules, and only when courts impose sanctions when attorneys do not.”

Thank you, your Honor, for stating that truth. In my practice, I see not only the harms that patients suffer while seeking medical services but also their struggles to access and afford safe, effective, and excellent medical care. This has become an ordeal due to the soaring complexity, uncertainty, and costs of treatments and prescription medications, too many of which turn out to be dangerous drugs.

While patients must demonstrate admirable fortitude to venture into the unfamiliar and likely intimidating civil system to seek justice with their claims of harm, the medical establishment and insurers relish their counter factual claims about malpractice. But year after year the evidence refutes their myth making, showing that relatively few of these cases advance in state courts across the country. While judges and juries can require defendants to pay substantial judgments, these are not common, and, contrary to the canards otherwise, good doctors don’t encounter just bad luck and end up in court. Instead, a slice of doctors experience two, three, or more malpractice claims — and lose them. Malpractice actions can help to get bad doctors away from patients and to show and get clinicians and institutions to deal with systemic problems they might want to look past.

We have much work to do to quell the epidemic of false information that zips around the globe at light speed these days and plays a huge part in dividing our country. We need to eliminate what a well-known think tank calls “truth decay.” Facts and evidence matter. They can help us see decisive truths we need to live better, safer, healthier, and happier.

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