Heal Thy Self

BY ANDREW J. McCLURG

With Congress debating a patient’s bill of rights, it seemed like a good time to reprise one of the most requested Harmless Error columns of the last four years.

Legal disputes arising from the denial of medical coverage by managed health care organizations are on the rise. HMOs face a difficult challenge in making coverage decisions because they must delicately balance two conflicting interests: providing quality health care for their patients at a reasonable cost and hoarding as much money as possible.

Here are some of the more common questions about coverage and some standard responses from HMOs:

Q. How do I know if my condition is covered?

A. Check the “Exclusions” section of your plan description. Typical services excluded from coverage include dental care, cosmetic surgery and anything costing more than ten dollars. Our preferred method for determining whether a condition is covered is through an autopsy. However, before seeing a coroner, you must get a referral from your primary care physician.

Q. Is mental health treatment covered?

A. Are you crazy? That stuff is expensive. However, to serve the mental health needs of our loyal plan participants we’ve set up a therapy help line. Simply dial our toll free number and select from the following menu of sensitive pre-recorded treatments:

1. Quit Your Whining.
2. It’s Your Mother’s Fault.
3. Dump the Jerk.
4. Those Strange Voices In Your Head Aren’t Real.
5. Smiling Your Way Through Deep, Dark Depression.

Q. Is Viagra covered?

A. Only under the extended plan. Ha. Kidding. The real answer is: NO. Due to rising pharmaceutical costs, we’ve been forced to make minor adjustments in our prescription coverage. Effective immediately, the following prescriptions are no longer covered: the most popular drugs selected by physicians for effective treatment of the most common ailments suffered by human beings.

Q. How can I get in to see an “Out-of-Network” provider as described in my plan?

A. You can’t. That’s a typo. The coverage is for “Out-of-Work” providers. They’re much cheaper.

Q. What happens if coverage is denied, but I desperately need treatment?

A. We recognize the need to resolve coverage disputes expeditiously. For this reason, we’ve established a speedy automated appeal procedure.

Step one: Request EZ Complaint Form 5436.

Step two: Fully complete all 72 pages, including attached “Humiliating Intrusion Into Your Personal Life and Medical History Form 7435.”

Step three: Conveniently deposit the completed form in any nearby trash receptacle. While you relax in the comfort of your home, your claim is being automatically processed and denied.

Q. I’m blind. Does your company show special sensitivity in handling claims by the sight-impaired?

A.

Q. My plan excludes coverage for pre-existing conditions. What does that include?

A. The new industry-wide definition for pre-existing condition is: “Any illness, disease, infirmity, malady, affliction, ailment, injury, sore throat, cough, scraped knee, fever, infection, broken bone, concussion, kidney stone, pregnancy, tumor, hemorrhage, psychosis, missing limb, ache, pain, or gripe of any kind arising on or before the date on which medical treatment is sought.”

Q. Does my plan cover home visits by a designated provider?

A. Ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha … stop, you’re killing me.

Say What?

BY ANDREW J. McCLURG

The hearsay rule and its many exceptions are a marvel of complexity. The confusion starts with the basic definition of hearsay as any statement made out of court “offered to prove the truth of the matter asserted.” If an out-of-court statement is offered for a purpose other than proving truth, it’s admissible.

Some lawyers believe all statements are offered to prove their truth and that opponents sometimes subvert the rule by misrepresenting the real purpose for which evidence is offered.

This allegedly occurred in a recent criminal case where John was on trial for killing Bill. The prosecution pinned its case on a post-it note seized from John’s refrigerator that said “To Do: 1. Pick up dry cleaning. 2. Empty litter box. 3. Kill Bill.”

The defense cried hearsay, but the prosecutor argued indignantly that the note wasn’t being offered to prove John killed Bill, but only to show John has good penmanship, is an organized person and has potential as a hit songwriter because he can rhyme “Bill” and “kill.” The judge readily agreed and admitted the note, but cured any problem by telling the jury not to think about it.

Of course, John’s note could also come in as an Admission of a Party-Opponent, but why the law gives credence to these stick-in-the-muds is a mystery. In any event, all lawyers can use a refresher on the hearsay exceptions. Here are two for starters:

Records of Vital Statistics. Diverse constituencies attended the drafting convention for the hearsay rules, including a faction of rabid sports fans with a love of sports trivia. These diehards insisted on a hearsay exception for records of vital statistics such as most RBIs, most yards rushing and most third down conversions by a player facing mandatory sentencing.

Opponents argued the exception was unnecessary because such statistics can come in under other exceptions, such as that for dying declarations: “Gasp. Most touchdown passes … cough … cough … Dan Marino … ackkk.”

But the determined sports fans won. Unfortunately, lots of precious courtroom time is wasted over squabbles about whether a statistic is “vital.” Cubs fans think their stats are vital, Knicks fans theirs, it goes on and on. At one recent trial the litigants got so rowdy they began throwing snow balls at the jury and beer sales had to be shut down.

Mental, Emotional or Physical Condition. Another important hearsay exception is for statements regarding a person’s mental, emotional or physical condition. Under this rule, just about any gripe concerning what ails a person is admissible. “My back is killing me,” “I think I’m gonna throw up” and “Oh no, I have a huge zit” all come in. The problem is no one wants to listen to this complaining in the first place, much less admit it into evidence.

However, sometimes a closer look reveals evidentiary significance in everyday whining, as the above examples demonstrate when studied in context:

“My back is killing me. I’m not carrying that body one more step.”

“I think I’m gonna throw up. Maybe I should cut down my intake of illegal narcotics.”

“Oh no, I have a huge zit. I hope no one recognizes me from the liquor store robbery.”

Next month we’ll cover the hearsay exception for “excited utterances,” concentrating on lawyers’ responses to the statement: “I’m leaving the firm and taking all the clients with me.”

Tot Tech

BY ANDREW J. McCLURG

In our high-tech information society, product manufacturers are well aware of the importance of product release announcements for generating buzz in the marketplace.

Lawyers often play a crucial role in compiling and reviewing new product documentation prior to its release. Sometimes it goes to their heads, as two Silicon Valley lawyers recently demonstrated:

Product Release Announcement

The development team of Todd and Rita Billington are delighted to announce the release of their new product, Kate, on Wednesday, 2:23 a.m., at Memorial Hospital. Processing difficulties delayed the product release one day, a snag that caused concern and prolonged wailing among the Rita Division of the Billington team.

Product specifications:

Weight: 7 lbs
Length: 20 inches
Memory: none
Connections: cordless once removed from packaging

Although customer response has been warm, critics have accused Kate of being over-engineered and lacking several important features called for in the original user requirements documentation, including a simplified user interface and automatic scream-saver when not in use.

The Billington team resisted investor pressure to outsource the development, insisting on maintaining full creative and legal control over the product and its source code. However, negotiations are already underway with several neighborhood independent contractors to outsource some future product maintenance and support on big nights out.

Kate comes equipped with many features demanded by today’s consumers of high quality tots: drooling, gurgling, cooing, chubby thighs and the prettiest pair of blue input units on the market today. The product is easily booted and rebooted using adorable tiny shoes from the Gap Kids typically delivered by outside suppliers.

Management is currently tackling what it terms “minor bugs” with Kate, including complaints that the product’s dual ports open frequently and without warning. Experts predict the problem will correct itself within 30 to 36 months, the estimated time frame to RAM the idea of using a toilet into long term memory. Until then, the problem is being addressed using extra-absorbent softwear.

Looking for a hard drive? How about an impossible one? Packing Kate’s 300 essential travel accessories, mastering the tech support to install her car seat, and negotiating traffic while faced backwards waving a cookie is guaranteed to make even a trip to the grocery store the hardest drive of your life.

Users must also beware of the virulent “Colic” virus, which rapidly disables all product functions except the sound card.

The product comes with a limited warranty: “Product is warranted to perform reasonably well for 13 years, at which time all operating systems will suddenly crash and product will function erratically and unpredictably. This is normal. Do NOT attempt to return product to place of manufacture as serious injury could result.”

While management irons out these complaints, the Billington team’s primary focus is to make Kate at least modestly compliant by Y2K. Currently, Kate is ignoring all user commands.

(Congratulations to new product owners Markus Weber and Wendy Nather, Chicago, IL, whose real birth announcement inspired this one.)

Cupid’s Covenant

BY ANDREW J. McCLURG

With Valentine’s Day looming, it’s a good time to get some legal perspective on the whole relationship thing, especially the breaking up part. We need to face the fact that despite our hopelessly unrealistic expectations, most relationships don’t last.

Breaking up has serious consequences for both parties which need to be considered in advance, while equal bargaining power still exists. Never enter into a relationship unless BOTH parties have executed the…

Relationship Termination Agreement

The undersigned prospective lovebirds, being of sound mind but probably not for long, enter into the following agreement to govern their respective rights and responsibilities in the event of a partnership dissolution:

1. I agree not to go around blabbing the embarrassing secrets and quirks you confessed to me in strict confidence on the silly assumption that I wasn’t going to some day hate your guts. Breach of this paragraph shall constitute tortious interference with prospective advantageous relationships.

2. Within 10 days of the contract termination, I covenant to place 25 melodramatic phone calls to you, at least half of which shall occur late at night while I am intoxicated. Just to remind you that I still have strong feelings for you, at least five of these calls shall qualify as “harassment” under applicable law.

3. I shall retain any and all cards, gifts and other items of endearment supplied during the contract term for one full calendar year, at which time I may dissolve them in sulphuric acid. I shall re-read all cards on at least five occasions, and hereby bind myself to feel nostalgic, wistful and wonder whether we made a mistake on each such occasion.

4. When asked why the contract was terminated, I shall falsely represent: “It was a mutual decision. We’re still good friends.”

5. Upon breakup, you shall return all items of personal property belonging to me, with immediate attention to any videotapes made during the course of said contract.

6. It is understood that the next person I date shall be less attractive than you and that this provision shall be strictly construed against the datee. I agree not to date your best friends, even though I think a couple of them are really hot.

7. Friends shall be split as follows: (fill in blanks) ________ is my friend. Do not even attempt to speak to him/her, as he/she is subject to an express condition subsequent to curse you loudly in the event of a contract breach. ________ can be your friend, since I’ve always found him/her affected and annoying. Everyone else is my friend (choose one or more depending on property settlement) on Mondays, Wednesdays and Fridays, alternate weekends and major holidays.

8. I agree not to hang out on “your turf,” including but not limited to your front porch and the alley behind your house, especially while on a date.

9. I covenant not to refer to any future contracting party as “Puppytoes” or “Yum-yum.”

10. I shall have the option of temporarily resuming the contract on at least two occasions after the breakup, at least one of which shall be initiated by a romantic chance encounter, preferably at someone’s wedding. It is understood that these contract renewals will be for short periods and end badly.

Cable Cartel

BY ANDREW J. McCLURG

With cities threatening lawsuits and stiff fines for lousy service and millions of viewers flocking to satellite dishes, cable television companies have realized they need to upgrade their image. The giant, caring brain inside the cable industry’s public relations center has responded with this insert for next month’s bill:

Important Customer Information

It has come to our attention through your constant whining and complaining that some of you couch potatoes aren’t satisfied with our service. Apparently, you think we treat you shabbily. Well, of course we do. Why? Because we can.

Just kidding. We love our customers. That’s the reason we’re writing to tell you about some exciting new improvements, that and a paralyzing fear of government regulation:

New programming. We’re happy to report that last month’s 500 percent rate increase has allowed us to expand our programming to include many new and exciting channels:

(1) Empty Sky Network. See the sky live 24 hours a day.

(2) Bovine Growth Network. Watch cows mature from birth to adulthood.

(3) The Jones Channel (TJC). People with the last name “Jones” discuss their life experiences.

(4) TNT Network. Not Ted Turner’s outfit. We’re talking real TNT! Live detonations around the clock.

(5) Plus 27 more golf channels!

Help line. Have a question? Call us anytime. You won’t get to talk to a real human being because cable companies do not employ actual live workers. However, we do have a great new phone menu designed to demonstrate how completely we control your pitiful boobtube-watching lifestyles:

If you’re calling from a touch tone phone—and we know you are so don’t even think about pretending you’re not—press 1. Wait for static. Press 5. Wait for static. Press 3, 6 and 9 at the exact same time. Now press 4 and then 8 REALLY FAST. Wait for static.

Press 1 finger to nose. We’re not kidding. Do it. … (Whistling) … We’re not in any hurry. Are you? There, that’s better. Now press 2 and then the pound sign. Or 7. It doesn’t really matter.

To report a service outage, enter your phone number, street address, zip code and mail us a picture of your house with directions. Stay on the line. For billing questions, skip to our state of the art automated account system and, seriously, good luck. If you have a complaint, press the star sign and hang up. Go watch more TV and you’ll feel better.

If at any time you wish to repeat this menu, you must be a very bored and lonely person. Go watch more TV.

Service appointments. Experiencing a service interruption? No problem. We offer four convenient and reliable appointment slots to help you manage your busy schedule: Fall, Winter, Summer and Spring.

Pay-per-view. Some of our most special programming is available only on a pay-per-view basis. Sign up now for the “Thrilla in Ashtabula” for only $99.95. See the heavyweight grudge match of the century as Lennox Lewis defends his crown against some other guy TBA.

Our promise to you. We’re 100 percent committed to providing you intermittent sound and video images and a monthly bill. If you’re not completely satisfied, we encourage you to try out one of our competitors. Be sure to figure in interstate moving costs when comparing monthly rates.

Cellular Rights

BY ANDREW J. McCLURG

The right to keep and bear a cell phone is one our nation’s most cherished liberties, yet a movement is afoot to restrict this freedom. Bills have been introduced in 25 states to prohibit driving and talking.

Beware. Freedom of digitized speech is in danger. Outlawing driving while talking would be just the first step. Next it will be no checking voice mail while piloting jetliners, then no ordering pizza while inserting plutonium rods. Where will it end?

But there’s good news. Lobbyists for the National Association for the Extreme Pecuniary Benefit of the Cellular Phone Industry have persuaded members of Congress to introduce the Cellular Freedom Act (CFA). Here’s why you should support the CFA:

Driving and talking. Some people feel that driving while talking on a phone is dangerous because it is distracting to drivers. And indeed it can be. Trying to talk and drive through red lights while motorists are flipping you off and shouting obscenities can be dangerous and distracting, especially when you’re trying to concentrate on the newspaper.

Under the CFA, anyone flipping off a motoring-cell phone user will be charged with reckless driving and improper signaling.

Cellular disruption. Sometimes — about 5 million times each day — cell phones go off at inopportune times, such as in the middle of theater performances, sermons and U.S. Supreme Court proceedings. In our nation of misplaced priorities, it is cell phone users who are made to feel ashamed on such occasions, when in fact they are victims of rude behavior around them.

Are the lives of Supreme Court justices really so overburdened that it would kill them to let lawyers answer the phone during oral argument? Of course not, but I’ll bet they’d pitch a fit if an advocate so much as paused to check Caller ID.

The CFA will restore the dignity of cell phone users everywhere by requiring that all activity within 100 yards of a ringing cell phone cease immediately. Time shall remain suspended until the call recipient gives the all clear sign that the conversation is over and no further calls are expected.

In the event multiple phones ring at the same time, the loudest phone wins. Should a dispute arise, all callers shall call back and the subsequent “ring-off” will determine talking order.

Talk-Talk. Some people can’t understand why people must be on the phone every second of the day, no matter where they are or what they are doing. The fact is, blabbing addictions are a serious problem in the U.S. that we have ignored for too long.

The CFA recognizes “prattle disorder” as a disability that must be accommodated by federal law. Under the act, all movie theaters, performance halls and classrooms will be required to have designated “Talking Sections” with sufficient electrical outlets to meet the battery-charging needs of the Get Off the Freaking Phone!-impaired.

Still undecided in the fight for cellular rights? Ask yourself this: “What if some day I’m greatly exceeding the speed limit on the Interstate through a construction zone during rush hour and get an urge to call my significant other to exercise my first amendment right to have a highly emotional argument over who should pick up the dry cleaning? Do I want the government saying I can’t do that?”

Ruff Justice

BY ANDREW J. McCLURG

In San Francisco, they hold Dog Court. This is where troubled dogs end up when they choose the wrong path in life, such as the one directly behind a fleeing postal worker.

Both sides show up and present their stories. Sometimes they bring witnesses and even lawyers. In half the cases, the dogs are ordered leashed or muzzled. Difficult cases are referred to pet shrinks. One dog was put on Prozac because, in the judge’s words, “he was so high-strung.”

What’s it like inside the canine justice system? The ABA Journal offers this exclusive firsthand account from Rex (not his real name), a retriever charged with vandalizing public property.

Day 1/Holding cell

Nervous. Agitated. Don’t like the way that German Shepard is wagging his tail at me. And the mutt with the scabs and one ear looks mean. Said he works in the automobile security industry. I don’t belong in here with them. They’re animals!

I’m innocent. Just in the wrong place at the wrong time—standing next to a fire hydrant getting ready for a little jog around the neighborhood, stretching my left rear quadricep.

Starving. Nothing to eat since I’ve been here except biscuits and water. Come to think of it, that’s all I get at home. That really bites.

Day 2/Interrogation

Right to remain silent? What kind of a right is that? Howl at 110 decibels. Now that’s a right …

Stop! Quit hounding me. How many times is he going to say, “Did you do it, boy?” and I say “Woof, woof,” before he realizes that’s my story and I’m sticking with it.

Day 3/Line-up

Some line-up. A chihuahua, alley cat and an unemployed performance artist named Stefan. So much for due process. But it doesn’t matter. I’m home free. No eyewitnesses except that mangy hound — Elrod! What’s he doing here? And with them. He must have rolled over.

Time to stay calm. Stop panting and lick that slobber off your lip like it’s the most natural thing in the world. They’re bringing him over. Be cool, Elrod. We’ve never met. We’ve never met. Elrod, stop licking my face. No sniffing. Elrod! Maybe I can still cop a plea.

Day 4/Sentencing

The judge is reading my rap sheet. It sounds bad, but I could explain everything if he would just listen, and if I could talk. For example, all those citations for chasing cars never would have happened if my owner would have just bothered to mention he was coming back. Thanks for the raging abandonment complex, master.

As for the aggravated assault against the cable guy, I am 100 percent blameless. “Guard the house, Rex.” That’s what the man said. I just do what I’m told. It’s not like he ever gave me a list or anything. Never said, “Bite intruders unless they’re wearing a patch that says they work for a regulated utility.” If the dude had been a burglar, I’d be a hero. Probably get my picture in the paper.

Uh oh, it’s sentencing time. Fourteen years in the backyard! No way. I’ll never survive captivity. Well, I have all my life, but still. Man, those better be dog years.

eLawrealcheep.com

BY ANDREW J. McCLURG

E-commerce has exploded. You can buy just about anything online these days. eBay Inc. alone offers four million auctions a day, in 4,320 categories. It was only a matter of time before e-lawyering came of age.

Ambitious new web sites are about to start auctioning legal services. Law firms will be able to bid online to provide services ranging from personal injury defense to drafting real estate documents. The idea is to get firms to bid against each other, driving down legal costs.

Some traditionalists object to legal services being treated like a fungible commodity. They fear e-lawyering will devalue the hallowed attorney-client relationship, an intimate union built on trust, confidence and open communication.

They may have a point. Check out this transcript of a recent online transaction, submitted by a frustrated, e-challenged lawyer:

eLawrealcheep.com Transaction Record #90896

Lawyer. Hello. I’m writing to inquire about the products liability defense case posted on your web site. My law firm is new to electronic representation, so please tell me how to proceed. Frankly, I have concerns that the auctioning of legal services may detrimentally affect the attorney-client relationship. I am hopeful you can alleviate these concerns.

E-Client. Enter your name, address, seven-digit password, credit card number and amount of bid. Scan bid for viruses and make sure decimal points are placed correctly. In our experience, virus-infected bids and misplaced decimal points can seriously impair attorney-client relations.

Lawyer. (long cyber-pause) I am writing to see if we can set up a time and place to meet to discuss the case.

E-Client. Your last entry could not be processed. Double-check credit card number and try again.

Lawyer. Don’t you think we should get to know each other before proceeding further? After all, as your lawyer, I would be among your closest confidants. And, of course, I am very interested in learning more about your company to make sure you’re a good fit for my firm.

My name is Tom … for 25 years … president of bar association … $5 million verdict … Lawyer of the Year … firm’s clients include … raised in … church caught fire … years in recovery … beautiful wife and three children.

E-Client. Hello, Tom. We’re a Delaware corporation. Enter amount of bid.

Lawyer. Could you tell me more about the case?!! Successful representation depends on complete familiarity with the facts.

E-Client. Click on Case Specifics for additional details.

Lawyer. I did click on it!!!!! I clicked on it until my fingers bled!! It finally took me to a porn site!!! I can’t even tell what kind of product it is. The picture is the size of an electron. Is it a can opener? A Slinky?

E-Client. It’s a thresher. Click on the image to enlarge the picture. Do you want to bid?

Lawyer. This whole set-up is outrageous!!!!!!!!!! You’ve destroyed the sanctity of the attorney-client relationship!!!!!!!!!!!!:(:(:(:. Don’t you want to know anything about your lawyers except their bid?

E-Client. How much does your firm charge for photocopies?

Lawyer. I can’t take it.

E-Client. Sorry, Tom. Bidding just closed on the products liability case. Would you be interested in bidding on this week’s special, the “Dime-O’-Dozen” bond deal package?

Note to readers: Real online legal services auction companies do not function as described above. This is silly parody.