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CNN Live Sunday

Legal Eagles

Aired September 14, 2003 - 10:39   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


HEIDI COLLINS, CNN ANCHOR: Texas voters have decided a major political batted that pitted doctors against lawyers. They voted for an amendment to the state constitution to allow limits on some civil lawsuit awards. Fifty-one percent of voters approved the measure; that's with 99 percent of Texas voting precincts reporting. The amendment called Proposition 12 would set a $750,000 cap on non- economic damages in medical malpractice lawsuits. The measure was one of 22 constitutional amendments decided by voters.
The Texas vote is one of several legal stories making news for our legal eagles this week. Joining us from Philadelphia is CNN contributor and trial attorney Michael Smerconish on the left, obviously. Hi, Michael.

MICHAEL SMERCONISH, TRIAL ATTORNEY: Hi, Heidi.

COLLINS: And from Miami, criminal defense attorney Jayne Weintraub. Jayne, thanks for being here as well.

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Good morning.

COLLINS: So Michael, why don't you go ahead and begin. What do you think about this?

SMERCONISH: I don't like it. I don't like having caps imposed in the civil cases, because I think that it's the aberrant case that gets the headline and it distorts the public's view of what is really going on in the civil courts across the country. Heidi, I had on my radio program not too long ago the woman whose last name was McDougal who was victim of a mistaken double mastectomy. There's been this national movement afoot to limit caps to $250,000. And what's that, $125,000 per breast? It's not enough, and caps are a bad idea.

COLLINS: And Jayne, your thoughts?

WEINTRAUB: Well, I agree that we have to stop the frivolous lawsuits. Unfortunately, the lawsuit that Michael just made reference to, that's the one, you know, in a zillion lawsuits. That's a seriously aggrieved person that needs relief. However, most of these lawsuits are frivolous today, like the spilling of a cup of coffee and they try and get zillions of dollars.

I think the insurance companies need to work with everybody here and they need to lower the malpractice rates so that they're affordable. We need to limit the frivolous lawsuits. And perhaps for the ones that are serious and egregious, like the one Michael mentioned, maybe we should have an arbitration panel to determine or evaluate, do they come into a special category to be weighed separately.

SMERCONISH: But Jayne, the other side of this is, you're right. Lawyers who file frivolous lawsuits ought to be disciplined. But the doctors need to thin their own ranks. So many of these claims are filed against doctors on a repeat basis. And the medical community does nothing to weed itself of the bad actors in their profession. NRS...

COLLINS: And let me also ask you...

WEINTRAUB: But that's an administration claim. But the insurance polis -- you know, the insurance premiums are killing the doctors. They're killing everybody.

SMERCONISH: I agree. I agree.

COLLINS: Let me just jump in, guys. What do you think about the voter turnout her, which we have not yet said? Eleven percent, does that tell you anything -- Jayne.

WEINTRAUB: I think that's terrible.

COLLINS: Michael.

SMERCONISH: If Schwarzenegger were on that ballot, maybe the outcome would have been different. But he's not. So I'm not surprised.

COLLINS: And on that note, I think we'll move on to our next topic. Thanks for that.

I want to talk about Triple A, the American Automobile Association. And we've been hearing a little bit about this case. A lot of people wondering about it. I want to set it up for you. A 27- year-old elementary schoolteacher, her car broke down in Cape Cod back in 1999. Her stepfather called Triple A, and tried to get a tow truck to come. But when the tow truck got there he said he would not be able to take her immediately; wouldn't be able to come back for three or four hours. Rather than wait, she decided that she would she would take a ride from a stranger. And later that stranger raped and stabbed her to death.

Wondering what your thoughts are about how liable Triple A really should be -- Jayne.

WEINTRAUB: Well, you know, the issue here is one of -- the legal issue is one of foresee ability. Whether or not it was foreseeable that if a Triple A person left her there for several hours, she would be hurt or murdered. Of course, that's a question for a jury.

The publicity in and of itself as to Triple A and the bad policy here is what really, I think, caused the settlement. I mean remember, Triple A really sells more than, we're going to fix your flat tire. They sell a sense of security. If you call us, you're going to be OK. You won't be stranded. And here, that's exactly what did happen. Would you want to leave your daughter in a parking lot of a busy place on Saturday night for three or four hours? That's what this guy did. Why didn't he offer her a way to safety, just as a human issue on a decency level?

But the legal issue is one of foresee ability; I think the lawsuit was very important to be filed.

SMERCONISH: But Michael, what does Triple A really promise here? Is it service or security, and how much do they promise on behalf of their employees?

SMERCONISH: I think Jayne is right when she says, you know, they hold themselves out as offering services to people who are in distress. Now, I know, Heidi, there are people at home right now saying, well, Triple A didn't kill that woman. And why did she take a ride from a stranger? I think the reason that Triple A settled this case, and it was a unique case, they didn't want to have a precedent out there where a duty was recognized in the law to help a woman in this circumstance. There's no precedential value to a settlement and I think they were concerned about a jury verdict being rendered against them.

COLLINS: All right. I want to move on now to the last issue of the day. And that is Kobe Bryant. Just to set this one up. Attorneys for Kobe Bryant asked a judge on Friday to close the preliminary hearing to the public and press, because of publicity from this case could possibly jeopardize his right to a fair trial.

Michael, will this end up actually being a closed preliminary hearing?

SMERCONISH: I doubt that it will be. But you know, I think there's a good argument that it should be. In the end, I think that everyone should get into that trial, including cameras in the courtroom. But the problem with the case like this, is in the preliminary stages, we are all fixated on it. You know we'll be here the Sunday morning after that preliminary hearing, and we'll be handicapping what took place. And that's at a time when there is no jury, and a jury pool could be poisoned. It's different when the trial begins.

COLLINS: Jayne, I'm noticing your eyes bugging right out of your head.

WEINTRAUB: Cameras belong in circuses and movies, they don't belong in courtrooms. They detract from the dignity of the process, and the integrity of the hearing that's actually going on.

The public has access to this courtroom. There will be a microphone in there, and there is a record. People can go into the courtroom. And as far as closing the preliminary hearing, what kind of wave are we starting? Is this going to be a star chamber? A closed hearing because he's a celebrity and gets separate justice? I say no. And I don't think the preliminary hearing should be closed or will be closed. It needs to be an open courtroom. He needs to be treated like everybody else.

COLLINS: All right, guys, we're going to have to...

WEINTRAUB: I think that's what he would want.

COLLINS: We're going to have to call it quits on that note. Thank you so much to the both of you.

SMERCONISH: OK.

COLLINS: CNN contributor and trial attorney Michael Smerconish and criminal defense attorney Jayne Weintraub. Thanks again, guys.

SMERCONISH: Thank you.

WEINTRAUB: Thank you, Heidi.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com







Aired September 14, 2003 - 10:39   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
HEIDI COLLINS, CNN ANCHOR: Texas voters have decided a major political batted that pitted doctors against lawyers. They voted for an amendment to the state constitution to allow limits on some civil lawsuit awards. Fifty-one percent of voters approved the measure; that's with 99 percent of Texas voting precincts reporting. The amendment called Proposition 12 would set a $750,000 cap on non- economic damages in medical malpractice lawsuits. The measure was one of 22 constitutional amendments decided by voters.
The Texas vote is one of several legal stories making news for our legal eagles this week. Joining us from Philadelphia is CNN contributor and trial attorney Michael Smerconish on the left, obviously. Hi, Michael.

MICHAEL SMERCONISH, TRIAL ATTORNEY: Hi, Heidi.

COLLINS: And from Miami, criminal defense attorney Jayne Weintraub. Jayne, thanks for being here as well.

JAYNE WEINTRAUB, CRIMINAL DEFENSE ATTORNEY: Good morning.

COLLINS: So Michael, why don't you go ahead and begin. What do you think about this?

SMERCONISH: I don't like it. I don't like having caps imposed in the civil cases, because I think that it's the aberrant case that gets the headline and it distorts the public's view of what is really going on in the civil courts across the country. Heidi, I had on my radio program not too long ago the woman whose last name was McDougal who was victim of a mistaken double mastectomy. There's been this national movement afoot to limit caps to $250,000. And what's that, $125,000 per breast? It's not enough, and caps are a bad idea.

COLLINS: And Jayne, your thoughts?

WEINTRAUB: Well, I agree that we have to stop the frivolous lawsuits. Unfortunately, the lawsuit that Michael just made reference to, that's the one, you know, in a zillion lawsuits. That's a seriously aggrieved person that needs relief. However, most of these lawsuits are frivolous today, like the spilling of a cup of coffee and they try and get zillions of dollars.

I think the insurance companies need to work with everybody here and they need to lower the malpractice rates so that they're affordable. We need to limit the frivolous lawsuits. And perhaps for the ones that are serious and egregious, like the one Michael mentioned, maybe we should have an arbitration panel to determine or evaluate, do they come into a special category to be weighed separately.

SMERCONISH: But Jayne, the other side of this is, you're right. Lawyers who file frivolous lawsuits ought to be disciplined. But the doctors need to thin their own ranks. So many of these claims are filed against doctors on a repeat basis. And the medical community does nothing to weed itself of the bad actors in their profession. NRS...

COLLINS: And let me also ask you...

WEINTRAUB: But that's an administration claim. But the insurance polis -- you know, the insurance premiums are killing the doctors. They're killing everybody.

SMERCONISH: I agree. I agree.

COLLINS: Let me just jump in, guys. What do you think about the voter turnout her, which we have not yet said? Eleven percent, does that tell you anything -- Jayne.

WEINTRAUB: I think that's terrible.

COLLINS: Michael.

SMERCONISH: If Schwarzenegger were on that ballot, maybe the outcome would have been different. But he's not. So I'm not surprised.

COLLINS: And on that note, I think we'll move on to our next topic. Thanks for that.

I want to talk about Triple A, the American Automobile Association. And we've been hearing a little bit about this case. A lot of people wondering about it. I want to set it up for you. A 27- year-old elementary schoolteacher, her car broke down in Cape Cod back in 1999. Her stepfather called Triple A, and tried to get a tow truck to come. But when the tow truck got there he said he would not be able to take her immediately; wouldn't be able to come back for three or four hours. Rather than wait, she decided that she would she would take a ride from a stranger. And later that stranger raped and stabbed her to death.

Wondering what your thoughts are about how liable Triple A really should be -- Jayne.

WEINTRAUB: Well, you know, the issue here is one of -- the legal issue is one of foresee ability. Whether or not it was foreseeable that if a Triple A person left her there for several hours, she would be hurt or murdered. Of course, that's a question for a jury.

The publicity in and of itself as to Triple A and the bad policy here is what really, I think, caused the settlement. I mean remember, Triple A really sells more than, we're going to fix your flat tire. They sell a sense of security. If you call us, you're going to be OK. You won't be stranded. And here, that's exactly what did happen. Would you want to leave your daughter in a parking lot of a busy place on Saturday night for three or four hours? That's what this guy did. Why didn't he offer her a way to safety, just as a human issue on a decency level?

But the legal issue is one of foresee ability; I think the lawsuit was very important to be filed.

SMERCONISH: But Michael, what does Triple A really promise here? Is it service or security, and how much do they promise on behalf of their employees?

SMERCONISH: I think Jayne is right when she says, you know, they hold themselves out as offering services to people who are in distress. Now, I know, Heidi, there are people at home right now saying, well, Triple A didn't kill that woman. And why did she take a ride from a stranger? I think the reason that Triple A settled this case, and it was a unique case, they didn't want to have a precedent out there where a duty was recognized in the law to help a woman in this circumstance. There's no precedential value to a settlement and I think they were concerned about a jury verdict being rendered against them.

COLLINS: All right. I want to move on now to the last issue of the day. And that is Kobe Bryant. Just to set this one up. Attorneys for Kobe Bryant asked a judge on Friday to close the preliminary hearing to the public and press, because of publicity from this case could possibly jeopardize his right to a fair trial.

Michael, will this end up actually being a closed preliminary hearing?

SMERCONISH: I doubt that it will be. But you know, I think there's a good argument that it should be. In the end, I think that everyone should get into that trial, including cameras in the courtroom. But the problem with the case like this, is in the preliminary stages, we are all fixated on it. You know we'll be here the Sunday morning after that preliminary hearing, and we'll be handicapping what took place. And that's at a time when there is no jury, and a jury pool could be poisoned. It's different when the trial begins.

COLLINS: Jayne, I'm noticing your eyes bugging right out of your head.

WEINTRAUB: Cameras belong in circuses and movies, they don't belong in courtrooms. They detract from the dignity of the process, and the integrity of the hearing that's actually going on.

The public has access to this courtroom. There will be a microphone in there, and there is a record. People can go into the courtroom. And as far as closing the preliminary hearing, what kind of wave are we starting? Is this going to be a star chamber? A closed hearing because he's a celebrity and gets separate justice? I say no. And I don't think the preliminary hearing should be closed or will be closed. It needs to be an open courtroom. He needs to be treated like everybody else.

COLLINS: All right, guys, we're going to have to...

WEINTRAUB: I think that's what he would want.

COLLINS: We're going to have to call it quits on that note. Thank you so much to the both of you.

SMERCONISH: OK.

COLLINS: CNN contributor and trial attorney Michael Smerconish and criminal defense attorney Jayne Weintraub. Thanks again, guys.

SMERCONISH: Thank you.

WEINTRAUB: Thank you, Heidi.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com