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March 29, 2005

Is this the system we want?

From a letter from a Florida lawyer to Steve Sailor's blog:

I have been following the case for years. Something that interests me about the Terri Schiavo case, and that doesn't seem to have gotten much media attention: The whole case rests on the fact that the Schindlers (Terri's parents) were totally outlawyered by the husband (Michael Schiavo) at the trial court level.

This happened because, in addition to getting a $750K judgment for Terri's medical care, Michael Schiavo individually got a $300K award of damages for loss of consortium, which gave him the money to hire a top-notch lawyer to represent him on the right-to-die claim. He hired George Felos, who specializes in this area and litigated one of the landmark right-to-die cases in Florida in the early 90s.

By contrast, the Schindlers had trouble even finding a lawyer who would take their case since there was no money in it. Finally they found an inexperienced lawyer who agreed to take it partly out of sympathy for them, but she had almost no resources to work with and no experience in this area of the law. She didn't even depose Michael Schiavo's siblings, who were key witnesses at the trial that decided whether Terri would have wanted to be kept alive. Not surprisingly, Felos steamrollered her.

The parents obviously had no idea what they were up against until it was too late. It was only after the trial that they started going around to religious and right-to-life groups to tell their story. These organizations were very supportive, but by that point their options were already limited because the trial judge had entered a judgment finding that Terri Schiavo would not have wanted to live.

This fact is of crucial importance -- and it's one often not fully appreciated by the media, who like to focus on the drama of cases going to the big, powerful appeals courts: Once a trial court enters a judgment into the record, that judgment's findings become THE FACTS of the case, and can only be overturned if the fact finder (in this case, the judge) acted capriciously (i.e., reached a conclusion that had essentially no basis in fact).

In this case, the trial judge simply chose to believe Michael Schiavo's version of the facts over the Schindlers'. Since there was evidence to support his conclusion (in the form of testimony from Michael Schiavo's siblings), it became nearly impossible for the Schindlers to overturn it. The judges who considered the case after the trial-level proceeding could make decisions only on narrow questions of law. They had no room to ask, "Hey, wait a minute, would she really want to die?" That "fact" had already been decided.

In essence, the finding that Terri Schiavo would want to die came down to the subjective opinion of one overworked trial judge who was confronted by a very sharp, experienced right-to-die attorney on one side and a young, quasi-pro bono lawyer on the other.

Nothing unusual about this, of course. It's the kind of thing that happens all the time. But it's an interesting point to keep in mind when you read that the Schiavo case has been litigated for years and has been reviewed by dozens of judges . . . yadda yadda yadda.

By the way, I'm guessing that George Felos is probably quite happy to work the Schiavo case for free at this point since it's making him one of the most famous right-to-kill -- I mean right-to-die -- lawyers in the country. His BlackBerry has probably melted down by now, what with all the messages from the hurry-up-and-die adult children you've been blogging about.

One of the lies the media keep telling is that the “courts” have found this or that regarding Terri. No, a judge ruled that her wishes were to not have “artificial means” used to prolong her life, then decided that food is an artificial means (he's ordered no food or liquid by mouth). If you read the appeals, even the ones that higher judges ruled favorably on, they never, ever corrected the judge's mistake. In one appeal he was ordered to “reonsider” evidence he'd dismissed. He pretended to “reconsider” it, and ruled the same as he had before. Thus no more appeals could be made on that issue.

It's a sick game lawyers have invented for us, that we have to play by the rules of “who ever has the most expensive lawyer wins” and now we get to watch an innocent woman be tortured to death because her slime-wad of a husband used her healthcare money to hire a slick lawyer, obsessed will killing the disabled.

Posted by Danny Carlton at March 29, 2005 07:30 AM

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