I agree with Garth’s analysis; although it does present an interesting question. According to your facts I agree that the cyclist should have his bike under control. BUT, What if the course motorcycle had run the proverbial stop sign and hit the competitor (remember I am now the hypothetical lawyer :))? Should not liability then properly attach?
David, the problem of your negligent driver injuring the racer is that the discussion is about race director liability. So, of course, the driver, never having received a waiver, or even having the benefit of assumption of risk would be liable to the rider.
I think Tom’s main point was that racers assume all risks associated with the race, or to quote Captain Kirk, “risk is our business.”
The problem with such a broad statement is that it is so broad. That is why presenting hypotheticals to test the statement is necessary (as you have done). What if the race director got drunk, was having sex while driving a vehicle and crashed through the barricades to injure a runner or rider? Maybe even Tom Dennerly would agree that that is not like being struck by lightning.
David, the problem of your negligent driver injuring the racer is that the discussion is about race director liability.
The purpose of the example is to show that “all risks” are not the same, as you point out so well. The law really is a social science. As such it is on a continuum. The answer on “risk” cannot and should not ever be an absolute. Does this make for some difficult situations, probably. But, I’ve never heard of or found a better solution.
David
Funny you should ask about my experience, one of my specialties is that I help structure settlements for attorneys/insurance companies. In short, I’m on the logistical side of the “paying the bill” scheme. Basicly, I don’t believe there is a better system. However, what I did say is that the legal system is simply a part of the cost stucture for businesses.
What I have experienced is this:
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in general, civil cases that go to courts are not settled out because they are NOT the best cases. By and large, those cases that go to court are those where the plaintiff has nothing to loose and everything to gain. By the same token, the defense has no reason to settle out of court since it’s a bogus claim. What happens, it goes to court. If it has true merit it would be settled out of court because both side have more at stake putting it into a juries hands.
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in general, criminal cases work under the same premise. Those that are fact driven, the D.A. seldom will plea the case to a lesser charge. In turn, the defense has nothing to loose and everything to gain by taking it out the D.A.'s hand and into the juries. In essense, the juries see mostly cases that have plenty of evidence to hang the bastard. But, the defense is depending upon the jury for a light sentence because he won’t get it from the D.A. It’s less about guilt and more about sentence.
Chipping away at our rights is not what I think it’s all about. It’s about chipping away at my (and your) pocket book. Our rights are guaranteed. Unfortunately, rights are not necessarily what are protected by the courts. It is usually the pocketbook.
If it was what is right or wrong that is being judged in a court room then I don’t believe you would see the kind of economic benefits gained. The judicial system is a business. If it wasn’t, you would adds on TV saying, “Have you been wrongfully treated or injured…Where you were definatively in the write with proof and evidence. If so, will find a way to get an apology and reinbursement for your actual losses” No what you have is, “Have you been in an accident. Come see us. Will get you money.”
That is what is called transferance of responsibility… it’s always some elses fault. And I have arrange millions of dollars of structure settlements to prove it. I deal with the “by-product” generated by those who will not stand in front of the jury but would rather take the sure thing over the court’s unpredictability. Jury court systems deal mostly with the “waste-product” of the judicial system.
And yes this works, but not because of the court system but it’s what doesn’t go to decisions by the courts that provides for justice. I find that Ironic.
Joe Moya
BTW, accountant, engineers and other professions doesn’t mean they are are intuitive and intelligent enough to not be manipulated by lawyers use of the facts. What it means is they have a degree - period.
Basicly, I don’t believe there is a better system.
Good. I am glad that we at least have a little common ground.
I believe I asked earlier if you had ever been in front of a jury. It is amazing the incite you seem to have on the way they work. (joking, and don’t mean it quite as sarcastic as it sounds) Actually I try to do just the opposite of what you state…I try to try my best cases. I would make no economical sense at all for me to try bad cases, because I would have a lot to lose - time, money, reputation, momentum, etc. That just doesn’t make practical sense because of the very business aspect that you bring up.
Also, although our rights are guaranteed, they are also very fragile. They do need to be protected and I’m glad and proud to be part of a system that does it, imperfect as it may be.
David,
Now that is a very interesting (and refreshing) business model. The law firms I have seen which use volume over substance don’t follow that model. They settle the sure things for what think is about 75-80% of what they might get in a court of law. OTOH, If they see a low probability of winning a out of court settlement, …they go to the courts.
They have no momentum or reputation to defend other than the economic one called “profit to the firm”. Time and money are in direct proportion to the number of clients they have. And, More client’s = more potential settlements.
Sad, perhaps. But, that seems to be the majority.
Oh yea, and it still is the best system… I have about tens of thousand of dollars worth of Tri-toys to prove it. For the loser, the system may suck, but I have my lips tightly wrapped around it .
As I always say, I make money no matter which side wins. Very few professions can say this (except doctors - you still pay them if the patient dies. go figure). And I proud of my profession also,… just not proud about some in my profession who promote that which is unethical. I equally despise those who can’t take responsibility for there own actions and assume responsibilities for the risks they take. Whether lawyers perpetuate ‘transferance of blame" can be argued both ways. But, (just in case) you won’t see me talking to a lawyer in the middle of a cross walk while crossing a street - call me paranoid, but that’s my rule and I’m stickn’ with it.
While I may just clean up after the fight. Lawyers and my profession have a lot in common…as I am sometimes confused as being a lawyer, I quickly point out that NO I am not a lawyer. but do belong to the same reptile group - forked tongue and all .
Joe Moya
Note to Tom: this has been a very good NG thread…Thxs.
It was a real situation but it didn’t happen to me. I was a volunteer marshall and I don’t want to get ahead of Greg’s articles. It could be held that I directed the motorcycle to stop and the driver had not been given any specific instructions of where to stop or not to stop. Am I right to say, that even though the waiver appears to protect me and holds me harmless, wouldn’t I have to be included in a suit and have to defend. If an attorney would fail to include me couldn’t there be a possibility of malpractice?
Thanks for all of great discussion.
Bob Sigerson
Joe,
So, just what exactly is it that you do that makes people confuse you with a lawyer? 
I agree, again, good thread Tom. I think this dicussion has benefited me.
Am I right to say, that even though the waiver appears to protect me and holds me harmless, wouldn’t I have to be included in a suit and have to defend. If an attorney would fail to include me couldn’t there be a possibility of malpractice?
Bob,
Aren’t you Louisiana? Although I may have become the “hypothetical Lawyer,” I know absolutely nothing about the Napoleonic Code!
OK, if this happened in my jurisdiction and if I was handling the case, and if the there was a breech of a duty amounting to negligence, and if that negligence caused a foreseeable injury;, then, I may consider challenging the waiver and including you in the suit. Please remember though that there are a myriad of factors, that the public rarely sees, that goes into the analysis including facts, strategy, personality, law, jurisdiction, hunches, etc.
Legal malpractice (there is a lot of it out there - in fact I see it as a next big wave) like medical malpractice is not based the exercise of judgment where that judgment used was a reasonable choice. It is based on a deviation from an accepted standard of care based on the facts as presented i.e. there must be negligence. For example, if there are three reasonable choices, but you happen, using best judgment, to pick one that doesn’t work out, that is not a deviation.
I have tried to avoid telling you how to “build a watch” every time I am asked “what time it is;” but, maybe this helps to illustrate that the law is never quite as clear cut as one might think, nor should it be (I’ll save the explanation for later).
Boy, I can’t wait for Greg’s insurance article!
PS The edit note below is b/c I had to correct early morning typos!
David, in Louisiana, they have legislated out the broad form contractural provisions which the oil companies used. They provided that the negligence of the contractor, subcontractors and owners were all the responsibility of the contractor. I don’t know if this would apply to the contract in the tri application. I believe we have adopted the Uniform Commercial Code for contracts as of a couple of years ago, by the way.
In your experience, would a court in your jurisdiction impute a different standard of care in the case of a for profit vs. a non-profit, charitable event, m-dot vs. Duke blue devil, for example?
Bob Sigerson
In your experience, would a court in your jurisdiction impute a different standard of care in the case of a for profit vs. a non-profit, charitable event, m-dot vs. Duke blue devil, for example?
Bob,
Assuming all of the “ifs” above, I believe that the law of “charitable immunity” was abolished here and in most jurisdictions quite some time ago. Further, in most all immunity situations (governmental immunity for example) the immunity is waived (there’s that word) by the purchase of insurance.
Also, note that many “Charitable” events, Duke Blue Devil for example, are actually run by for profit organizations. You know I like examples; so, if I am delivering a donation check to Hospice and run a stop sign on the way it is not a “charitable event” although there is certainly a charitable purpose in the trip…make sense?
Remember, free legal advice is worth what you pay for it!
David
That an easy question… I’m what some refer to me as a Money Manager…However, MOST recently they have been referring to me as a Mis-Manager of Funds. Crazy thing about Markets… they don’t always go up. So, O.K. let me have it - I can take the jokes.
I usually handle monies for High Net Worth indivuals/familes, Private, Public and Corporate Retirment Plans (btw, including law firms) and Structured settlments/contracts. Also, have been know to dabble in Underwriting. …Been doing the “retail investment” dance for about 18 yrs. now.
Joe Moya
BTW, the most common and less accurate description of my profession is Stock Broker = reptile. Most of my clients Stock transactions are handle by private money mangers I hire/rent.
Funny thing… when I was in my accounting years (as brief at they were), I was never confused with lawyers.
Joe,
Sounds interesting, particularly in these times. So…I take it that you have never been in front of a jury, at least not often. IMHO, having been there many times (and not really meaning to digress), the impressions that you state as facts way up above are not consistent with what i have experienced over the many years of doing this. I HAVE experienced that this is a very common public perception by those who have not been there. Some due to media and political influence, some due to the “glamor” cases that everyone hears about, some due to bad personal experience, and some who just don’t understand our system. Probably some just don’t understand why stock brokers have been in so many scandals lately, etc.
Peace,
David
It’s funny how we see things about the legal system from a different point of view because we are in more contact with different aspects of the legal system… I think the points we made are probably not that different in the end… I tried to describe the judicial system from a business standpoint. And like all businesses, law and it’s settlements have a price system (albeit, unwritten). How far from the norm this “cost/award” occurs seems to be determined by the facts regarding the case and the willingness of the lawyer to present the case.
Every business has it’s version of cost to reward restrictions. IMHO, typically people defend against financial loss not moral reasoning. The cost of protecting yourselve from losses is weighed against the reward you may have to pay. Most attorney’s determine the risk of winning/losing vs. the cost of fighting. This is good… this is why settlements occur out of court. This is where judicial decisions are made a lot times. It is where the risks are removed because juries are less predictable. This is why the legal system works more “efficiently” (although “effectively” may be debatable).
This is what business is about - weighing risks. As best I can tell (this from watch/knowing over 60 attorneys for many years), there is nothing glamorous about everyday legal work. The work is hard and difficult since probabilites and risks are so subjective. IMHO, I simply wish settlements were more about being fair and less about being right. Until that happens, I’ll be doing my best to clean up after the fights.
Joe Moya
BTW, I’m at a loss…what recent stock broker scandals…Maybe your confusing the Corporate executive scandals of Enron…World Comm…etc. I don’t believe financial consultants were involved (how we miss that one is beyond me?). Although, I do believe a few accountants (as well as, corp. execs.) will be someone’s bit$# in prison. Oh wait!, Martha Stewart… that may be one your referring to… I knew someone in my profession would have to be some part of the sh*# that hit the fan.
BTW, I’m at a loss…what recent stock broker scandals…Maybe your confusing the Corporate executive scandals of Enron…World Comm…etc. I don’t believe financial consultants were involved (how we miss that one is beyond me?).
The recent merrill lynch thing, the bald guy w/ the toopee - was it millican, all the lawsuits on churning, breach of fiduciar duty, bilking little old ladys, the other brokerage houses that have been in trouble. I’d say there has been plenty. A lot of my friends that do your type work are pretty upset by all this b/c of the implications to them.
david
What your referring to was the junk bond scandal in the mid-eighties (not Merrill-Lynch, it was Ivan Boesky and Michael Milkin of Drexel Burnham Lambert - now bankrupt). Yep, that scandal was directly related to the securities industry. That scandal also had more of an impact on the US economy than the current CEO/corporate exec. scandal involve Enron, World Com (and few others). Afterall, it basicly destroyed the Savings and Loan Industry (it’s this S&L association where widows and orphans money became involved).
However I don’t consider the Junk bond trader scandal as recent (17 yrs ago is a long time). On the other hand, the more recent Analyst - “conflict of interest and IPO’s” problem during the internet bubble does strike closer to home. The Enron - World Com problem was more about a corrupt accounting system and Accountants.
As best I can remember, the only current noteable scandal that does reflect on my profession was the “insider trading” problem involving Martha Steward (In money terms it’s pretty insignificant). My profession seems to have dodge the bigger bullet (so far) which is pretty amazing considering the recent overall market situation.
Joe Moya
BTW, I am constantly helping (not officially, of course) lawyers on financial issues that usually help their cases. In fact, I’m most proud of helping a friend/lawyer shut down a corrupt nursing home operation in Texas… at that time is was the largest financial settlement in the history of Texas. Accounting fraud is just a thief with a pedicure.
No, the Merrill Lynch settlement was just last month. That’s not what I follow, but there are currently lots of lawsuits!
Oh yes, that settlement (besides Merrill) also include a few other Wall Street firms (luckily not mine)…and there is also pending new SEC regulations. That was what I referred to as the IPO-Analyst conflict of Interest situation I referred to in my previous post. Sorry I wasn’t very clear on that issue.
That didn’t involve Brokers (that I know of)… In fact, the brokers in the retail trenches were about as much of a victum as the clients. Many lost money along with their clients. Luckily, I and 95% of my clients - not being one… mostly because I could see through that crap… I use to work on Wall Street but gave up that rat race some 17-18 yrs. ago.
I have also involved in the Financial Analysis (CFA) world of finance - but don’t practice analysis of companies - pays not as good and they are many times forced to compromise their ethics. This conflict of interest between the underwriters and analyst has been going on for many decades. Most analysts hate it but conform to keep their jobs. Let’s face it, analysts have such a conflict of ethical behaviour is because the underwriting makes all the money (they are on the asset side of the balance sheet) and analysts are just expenses (they are on the liability/expense side of the balance sheet). Invariably, the income side of the firm dominates the firm’s decision making process.
Personally, I think the fines were 1) not enough 2) won’t solve the problem. In this case, what needs to be done is to totally separated the Analysis side of the process from the Underwriting side of the process - Period. Pay checks should come from two seperate sources. However, you won’t see that happen - favors the investor too much (now that’s not right). That’s but one reason why I am useful - I’m experienced at dealing with those sharks and the many unwritten rules of investing.
FWIW Joe Moya
Joe,
Maybe we could start our own little SlowTwitch investing club w/ you handling it…any other takers? Now that Joe and I are buddies, I’m in!
Well David, The investment club idea may look good at first glance but not practical. I am only licensed to practice in about 14 states and 3 countries (and, that is no easy feat in itself). The problem with the internet is that it is restricted by states (or countries for that matter). So, if one of the members is a resident of Alaska (where I am not licensed) then 1) that member could not be a part of club or 2) I couldn’t execute the trades. Basicly, it’s not feasible.
What we currently have are SEC laws and NASD regulations that are 30 to 80 yrs. old. Those laws and regulations did not take into account todays technolgy and the communications system we now use. Until those rules changed, I’m pretty restricted. In fact, I could not use the internet as a median to communicate, advertise or solicite without special permission and reviews from compliance (code word for lawyers). Special note to big brother - I have not and did not solicite.
I have had only had two investment clubs in my career. They consisted of a group of doctors (min. initial investment was about $10,000 - monthly cost $1000 per member). The other consisted of a group of Ranchers in the middle of no where. When I received the account from another firm, it already accumulated about $250,000 with a monthly cost of $500 per member. In retrospect, the doctors were a real pain… they could never get along or come to a conclusive decision. When they did, they did really dumb things - alot. The ranchers just used the investment club as an excuse to get together every month and have a big barbeque. Now, that was a nice group of people. What happen to them is simple. The doctors eventually split the group up. The Rancher’s divided the assets up when 4 of the key members died of natural causes (there were only 7 to start with).
I guess the point I’m trying to make is investing from my standpoint is a serious business. Whether it’s $100 or a few Million, the investment of funds is work and not entertainment. A lot of people have the wrong idea about my profession. And, a lot of the misperceptions is actually a fault of my own profession. Those who have been in the profession as long as I have (btw, there isn’t that many) usually begin to specialize. Unfortunately, I don’t specialize in Investment groups. I try to stick with structured settlements, high net worth individiuls/familys/trust and Business Retirement plans (which would include Rollovers). (note: no solicitation - just the facts).
If you like, I can e-mail my business sight… Rules prohibit me from posting a reference to my sight on ng. In fact, rules prohibit me from discussing much about my business on the internet without review. Heck, I do a TV show on a local NBC affiliate and I have to be audited on everything I say. They are recorded and reviewed - what a pain. In fact, I’m very lucky I work for a firm that even allows me to do such a thing (most don’t).
Sorry, but I’ll have to pass on the investment club/group idea. But, thanks.
Joe Moya