generally speaking i am with you, tom. consider the "helix" debate from IMMOO last year. the race had you ride down a parking ramp for a few stories on a curving helix nearly two lanes wide. it was driven on everyday by all manner of vehicle - and was ridable with no brakes pedalling in the big ring in the pouring rain. others were calling some of the roads "dangerous" even tho they were regularly traveled by lumbering milk trucks on the ice at O-dark-thirty every wisconsin winter morning!! people were in an uproar on the net, calling out the RD and readying their negligence-based language before even seeing these things. ridiculous. but guess who wins in court, should push come to shove??

Agreed, 100%. I ended up with a body temp of about 93-94 degrees in the back of an ambulance last year after going out in a absolute deluge nor'easter that I had no business racing in. Frankly, the race probably should've been called off - the conditions were that bad. But, people wanted to race, a good majority did in fact race, and I should've been smart enough to listen to my gut, put the bike back in the car and head for Dunkin Dounts. I put on the wetsuit and get into the water and from there on out it's my problem. End of story. Everybody wants "freedom" (in the apolitical sense) but no one seems to want to be held acountable for what they do with it. If you want the freedom to beat your head against a wall, and you do so and hurt yourself (quite likely) you can't sue the wall's owner for failing to post a sign that says "Warning: Beating head against wall may result in injury or death." It's like (see what you started Tom) people who kill someone (in any form) while under the influence of drugs or alcohol and then their lawyer says:" Well, he was under the influence at the time." Well, if YOU chose to take the substance, then YOU are accountable for anything that occurs while under the influence of that substance. No? Seems simple to me.

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"To give less than your best is to sacrifice the gift." - Pre

MattMizenko.com

People are interested in participating in risk sports, such as Ironman, but are not willing to accept the risks or the ramifications. The risks cannot be pasturized. They cannot be transfered. A RD cannot remove them. Everyone wants to say they went skydiving. Everyone wants to be an adventure racer. Everyone wants to do Ironman. Guess what, those events have an element of risk. These risks are often extraordinary (i.e., they are outside many people's ordinary daily experiences). That's NOT the RD's problem. It IS the problem of the participants, literally. In 1996 11 people died climbing Everest. They were taking an enormous risk on a dangerous climb. They paid for the climb, they learned to climb, they walked up the mountain themselves. It was not done under duress. They exercised free will and paid the price for the extraordinary risk. Same thing with us? You want to be a triathlete? Ironman. Good, those are admirable goals, and they come with certain responsibilities. One of them is the responsibilty to make safe decisions or suffer the cost of your poor decisions.

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Tom Demerly
The Tri Shop.com

Tom, I am in the risk tranfer business, insurance. I've seen it all in my 40 years. We had a long thread about Utah and a lot of polls on forums and magazines and the consensus was that the athlete should assume the liability. (My opinion was the RD should have called the race but when he didn't, the risk was assumed). That being said, no matter how much you, as an individual, assumes, those who are dependent on us have not made that assumption. Of the 2000 athletes in a triathlon, how many do you think are going through tough times at home with a spouse who is looking for an out and, whoops, there it is with a pot of gold at the end of the rainbow.

Bob Sigerson

That Everest climb is a prime example. The lawsuits are still going on. From what I heard, even the guy who wrote the book about it and the publisher were sued. Several sailors (or their survivors) who got caught in a storm sued the national weather service last year for getting the forecast wrong. As long as the easiest way to get rich in this country is to sue someone for allowing you to be stupid we will have to deal with it.

Tom,

You make a number of good points. I agree that ULTIMATELY it is the racer's responsibility. I don't want a completely sanitized experience when I race.

However, you cannot discount the responsibility of a promoter to provide a modicum of safety. Honestly, at Pineman in 1999, the RD created a situation in which the most basic safety concerns were ignored (trust me, I was there). It's the RDs responsibility to ensure that water-safety personnel have paddles (rather than canoes with trash can lids), the ability to communicate with shore (at least a whistle), buoys which can be seen for at least 50 yards, roads with signs to notify drivers that "something unusual" is occurring, and adequate nutrition to support the athletes (unless previously stated that athletes provide their own food/water). Too often, we allow those who seek to make a profit (albeit very small) escape responsibility by simply saying, "the athletes need to take responsibility." Yes, I do take responsibility...to be prepared for the course as it's presented in the briefings.

When I attend an M-dot race, I have different expectations than when I attend a sparse Ultramarathon/Trail Run (or than my expectation for when I run Marathon des Sables in 2004;-). I adjust my expectations based upon RD promises.

BTW, I am an RD at 6 bike races each season (I've accumulated nearly 50 days of RD experience) so I understand this from both sides of the aisle.

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http://wattieink.com/elite-team/
Raising funds to help wounded veterans and racing RAAM 2013 with http://team4mil.org/
"If you are gonna charge... CHARGE HARD!"

Bob is right and makes an interesting point: The system we have in place for litigating liability is not functioning. It does not function because it is fundamentally flawed: It facilitates the transfer of liability, NOT responsibilty. How would risk sports differ if the law mandated sanctions against people who suffered the consequences of bad decision making? How to affect this? two ways: Through the bureaucracy in place (like building the pyramids) or take individual responsibilty for actions. Have you incured a loss? Take responsibility for it. Better yet, assess risks realistically and make informed decisions. Remember, people die in "extreme" sports. They die just as dead as if they were killed by an atom bomb. And no court or settlement in the world can bring them back. As great and powerful as our CULTURE and SOCIETY is it cannot remove risk. That is an INDIVIDUAL (not cultural or societal)capability and should remain as such.

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Tom Demerly
The Tri Shop.com

I did not race Utah but a friend did and I have to say that my thoughts on risk and responsibility have changed as a result. I probably would have raced that morning believing if they start us it must be "ok." After reading the debates over the summer I would like to think from here on out I'll be making independent decisions regarding the days when safety becomes an issue. Frankly, its the economics of the whole thing that makes it tough for me. Having acknowledged that I thinks its a bit easier now to include and to accept a dns in the risk profile of an event that sizeable chunks of cash/time/energy have been committed.

I totally agree that many people seem to have forgotten what the word responsibility means. But I don't think "you race, you risk" is all that easy.

Example (Somewhat extreme). I put on a 1/2 Ironman. At mile 35 I send you down a curving steep downhill that ends up crossing a busy street that I neglected to place any traffic control on. Hidden massive risk you had no way to be aware of. Most people would agree I should incurr some type of cost/punishment, even if it does not totally compensate your family for your loss.

IMHO, the problem is not the litegation per se, but the fact it is so over used / abused. How you solve that is beyond me.

...yes, but, taking RESPONSIBILITY means also taking responsibility when you do something wrong (negligent) that hurts someone else. If you run your car off the road and over my bush don't you owe the new bush!? Why do I have to take RESPONSIBILTY for that? That is YOUR responsibility. Doe sthis make sense?

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

My point exactly: Because the race director started the event you made the assumption it was safe. It was not. They made an error. At what point does responsibility for your own safety begin? As soon as you have the judgement to assess risk and the ability to act on the judgement, for most people beginning between the ages of 6 and 13. Willfully taking a risk means willfully accepting the ramifications of ANY outcome. That's why they call it risk: There is an opportunity for gain (IM finisher's medal) and the opportunity for lose (death/injury).

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Tom Demerly
The Tri Shop.com

Tom - Great post.

I wrestled with the same scenerios in my mind after IMUtah. I was not there, but I wondered what I would have done in that circumstance, had I been there. Like you I was very competitive when I was racing. The thrill of the competition and my own opersonal performance where always big drivers for me. There can be all kinds of other bad/crazy stuff going on, but I would be focussed on my own performance. That being said, had I been in the water at IMU, and knowing the level of profesionalism and care that Graham Fraser and his crew put into organizing races, I would have put my trust in the hands of the people running the race.

Now, if something unfortunate did happen to me personally, I am not sure how I would react. That's hard to say.

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Steve Fleck @stevefleck | Blog

This is an interesting counter point. My argument is that these two situations may be different. My concept of a racer's responsibility looks like this: RD to athletes: "I am hosting a race, it may be dangerous- do you choose to compete knowing I may have made logistical errors that may result directly in your death?" Athlete: "I choose to compete/not compete because I fully accept responsibilty for my own actions, including the action of entering an event where your actions/inactions may endanger my life. Those are the risks. I accept them and their potential ramifications."

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Tom Demerly
The Tri Shop.com

Or those who, due entirely to the irresponsibile actions of others, have become morbidly obese after eating fast food burgers, fries and shakes nearly EVERY DAY OF THEIR LIVES?

I think I have read every post in this thread and, until now, have resisted the urge to comment. In the interest of full disclosure, I am an attorney and on the plaintiff's side at that. That said, I am fully in favor of personal responsibility, as is our legal system and the tenets that govern it. The rule of "assumption of the risk" is alive and well, despite what one might think reading this thread. However, one can only be deemed to assume risks that one did or should have known about when one undertook the act in question. Thus, the notion that "willfully taking a risk means willfully accepting the ramifications of ANY outcome" is not legally sound nor should it be. If I enter a race, I obviously accept and assume a number of risks that are associated with the act of racing. (The waiver does not make this so, it is merely convenient evidence of this). However, why does it make sense to say I assume the risk of the negligent, gross negligent, or illegal conduct of others? A waiver is a mechanism that will shift the risk of other's negligent conduct to me, but beyond that, why shouldn't I be able to recover from someone for injurious conduct that I could not forsee at the outset and that the offender could have easily prevented? In the end, it all should come down to reasonable conduct. By taking my money, the RD agrees, in part, to use reasonable care to ensure that the race goes as a reasonable triathlete expects it will. In return, I agree to accept those risks that a reasonable triathlete can anticipate. Some risks will fall outside of this reasonable range, and the waiver will shift many of them to me. I guess I don't see why this system is so objectionable.

BTW, why isn't anyone customizing their subject headings anymore? Every post just say "Re: [the original subject]" Am I viewing the forum incorrectly? One thing I liked about the old forum was that posters usually gave a clue about what they were talking about in the subject line. Is this no longer fashionable?

Hi Garth, and thank you for your opinion as an attorney. It lends substantial credibility and an informed perspective to this discussion.
Garth does, however,IMHO, illustrate another defective piece of liability legislation: It is impossible to know all of the risks. In fact that is a contradiction in terms. The very nature of risk is that there are a virtually infinite number of events that may or may develop. Attemptimg to qualify which is an "acceptable" or "unacceptable" is invalid. Risk, again, by its very nature, is unpredictable. Attempting to diffeentiate between "acceptable" and "unacceptable" risk leaves the gulf of ambiguity through which a billion (trillion?) dollar legal industry leads a symbiotic existence. If we tightened up our definition of who is responsible for what and eliminate the ambiguous nature of litiginous vernacular our industry could save billions. OK, I'm off my soap box, for now....

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Tom Demerly
The Tri Shop.com

Tom,

Garth actually made very good points. I also I think I did to under this post and under my "waiver" post - did you read it?

Quite frankly I think maybe you have either had a very bad personal adverse experience, or, like others, have been subject to too much propoganda by the media, polititians, and insurance companies.

Your above statement just simply isn't the way it works in the law. Maybe that's why we have to go to so much school to confuse everybody :-). Nobody is ever responsible an "infinite" number of risks. Only risks that were caused by negligence and were foreseeable by an ordinary person. Unfortunately all the public ever sees are the "glamor" stories. I can tell you that in real life it is pretty darn tough to prove the various elements under the law, and even tougher to convince most juries.

Most negligence law isn't based on "liability legislation," rather most of it is based on centuries of common law. The same basic principles in my above bad example of running off the road and hitting my bush apply the you, me, and race directors. It's not an infinite unforseeable events filled with risks.

Am I getting anywhere?

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

I'm a defense attorney. I've devoted my professional life to arguing (with limited success) in favor of personal responsibility and many of the things y'all are talking about but you guys are taking it too far. If I get shot walking down the street, did I assume the risk because I know there are a lot of psyhos roaming the streets of LA? If I go into a hospital to get my right leg amputated and the doctor cuts off the left one, did I assume the risk because I know doctors sometimes make mistakes?

If you really want to change the system you perceive to be flawed, write your congressman or better yet, when you get called for jury duty, show up and serve instead of angling to get out of it like most people with a modicum of education or common sense do. We defense attorneys do ok when we have a statute on our side or a decent jury. It's when the plaintiff's bar is the only group who can get laws passed and anyone with anything going on upstairs avoids jury duty that things go wrong.

One last thing, litigation is almost never a pot of gold for anyone (not even lawyers). People sometimes get a lot of money in it, sometimes a lot more than they deserve, but every last one of them got put through the wringer. The smiles you see on litigant's faces when the jury comes back with a favorable decision are smiles of relief that the whole thing is over and the vast majority of them would give it all back in a minute to go back in time and avoid the whole thing.

I'd better stop, I'm starting to sound like a plaintiffs' lawyer. :)

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Anyone who tells you they're as fast now as they were when they were 18...
sure wasn't very fast when they were 18.

Rich,

I do mostly plaintiffs work; but, I almost (:-)) completely agree with all your points. When you play hockey you expect to be checked, hit with a puck, maybe even iget in a fight; but, you don't expect the scoreboard to fall down on top of you, the zamboni to come out and hit you during a period of play, or to be intentionally sledgehammered over the head with a stick.....all things that have nothing to do with the victims personal responsibility, but, if proved, deal with the personal responsibility of the at fault party.

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

Garth, if all attorneys agreed with you and, more importantly, conducted business that way then the one-day liability coverage would cost about 79 cents. I'm from Mississippi, the tort capital of the world. If any of these race directors have deep pockets or connections to anyone with deep pockets, the world of triathlon will soon hear of Mississippi attorneys. There will be a stable of professional triathletes sponsored by a group of attorneys who attend every event in the country in hopes that something will go wrong at one of them. The attorneys will then sue for $125 in medical costs (the ambulance charge for taking a perfectly healthy triathlete to the hospital to pronounce them perfectly healthy) plus $10 million to compensate for the triathlete for his emotional distress, pain and suffering, plus $387 million in punitive damages to make sure that these dastardly people "get the message". By the way, they will also sue the manufactures of the running shoes, bicycle and wetsuit worn by their athlete so they can show the jury how deep the pockets really are. Each defendant's insurance company will chip in a little to avoid the mess and the suit will be settled for $18.2 million. The attorneys take their $15 million and go to the next target. Triathlons, on the other hand, must now pony up mega-bucks for liability insurance and we are left with 6 events the next year which cost $2,412.50 to enter and will be cancelled if fewer than 5,000 competitors pay.

BillT,

Sure hope you're jesting (I fail to see the humor) since there is not one single slice of reality in your comments. Quite frankly, I really don't see anything constructive from your comments to the post or the discussions. If you are just trying to be funny fine, I suppose. I do believe in free speech and open discussions (even from OU, until he went tooo far) though. In any event I think some of us are trying to sort out the concepts of negligence, responsibility, risk, etc. i have found most of it to be informative and helpful.

Best Wishes,

david

Actually, BillT's numbers are a tad exaggerated for rhetorical effect, but the basic points -- and methods mentioned -- have a lot of truth in them

We have a society where the tort bar is successively targeting one industry after another to ruin. For example, over 50 companies that had only the most minor and peripheral interaction with asbestos have been driven into bankruptcy by the tort lawyers.

Doctors are fleeing tort-friendly states like Mississippi and West Virginia. Heaven help you if you get in a bike accident with a head injury in many parts of Mississippi because there are zero neurosurgeons left. The closest place for trauma care means a trip to Memphis.

And it is just getting worse. The tort lawyers are now guaranteed $600 million per year for the next 25 years as their slice of the tobacco settlement. This war chest is funding the assault on the rest of our economy.

However, it is not solely the lawyers who are ruining our way of life. I blame the juries who listen to these ridiculous cases and award completely crazy damages. People get so wrapped up in the notion, "well that is just a faceless corporation. They have plenty of dough. Let's award $150 million."

Any thinking citizen can spend 20 minutes looking at http://www.overlawyered.com and it doesn't take much common sense to realize this system is utterly broken and creating great damage to our country.

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~~Bob

I think I have failed to make my point in a concise manner, although a lot of the insights here are very valuable and I find them interesting. I'll try again with this thesis and offer some supporting argument:

Participation in sports involves risk. It is impossible to accurately determine the degree of risk. It is not finite. Therefore, it should be impossible to assign "responsibility" for damages incured during an event if every participant acknowledges the random and indiscriminate nature of risk. This eliminates the capability to transfer liability.

Go ahead, let me have it.........

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Tom Demerly
The Tri Shop.com

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

I have no idea what happened to the long reply I just typed....is the tech part working properly?

In any event here is sort of what I just said:



Are there bad lawyers? Sure. Are there bad race directors? Sure.

I think that you will find that most lawyers work very hard, very honorably, make less than you think, etc. Probably just like most other professions.

Quite frankly, your sweeping indictment of the legal system hurts your credibility. You know, our legal system is really what our country was founded on and what separates us from the rest of the world. Others have tried societies with no lawyers: Hitler's Germany, Stalin's Russia, Iotola's (sp?) Iran, etc...which would you choose?

Don't you think that overlawyered.com only takes the worst of the worst? What about all the others? Come on...

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

Tom,

This is a good discussion, and I appreciate your view. But, see you just proved the point. Under the law there is no liability for "random and indiscriminate," only for unreasonable and foreseeable. Don't you see the difference?

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

Ahh, well David, I do see you point- that there is a differentiation. That is part of my point I guess: There is only "risk", not different types of risk. You play you pay.
That's what I was trying to express. Thank you for your thoughts though, and I do see your point. :)

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Tom Demerly
The Tri Shop.com

in reply to

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Snip....want to change the system you perceive to be flawed, write your congressman or better yet, when you get called for jury duty, show up and serve instead of angling to get out of it like most people with a modicum of education or common sense do. We defense attorneys do ok when we have a statute on our side or a decent jury. It's when the plaintiff's bar is the only group who can get laws passed and anyone with anything going on upstairs avoids jury duty that things go wrong.

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Your so right and wrong at the same time. I been down that road...problem is congressmen are typically lawyers. Unfortunately, (in general) they have a vested interest in keep the system in tact. Right or wrong, that is the fact. There is simply not enough general concensus (on both the part of the congress and electorate) to make that kind of REAL change.

Decent juries are difficult to find and impossible to accomplish. Decent jury would be those that can make good judgments based on ALL the information. This is difficult to do since it is the job of both sides to not only skew the information but to attempt to eliminate that information which is damaging to it's side. By default, you can never have a Decent jury. And I know of few attorneys that would really want a decent jury unless you define decent as a bias jury (biased to your side- of course).

What you get are those who during the jury selection process are 1) perceived as easily manipulated (i.e., not intuitive) or 2) willing to make decisions without prior facts. Unfortunately, what is defined as information that would prejudice a jury's decision are actually facts that would help define the correct outcome. Despite that, I go and have never (and will probably never) be picked. I think therefore I am - that is not jury material. So, now... I show up therefore I waste my time.

Finally, yes - jury decisions are seldom a pot of gold. Unfortunately, many lawyers sell the idea of "easy money" in an attempt to put the "number game" probabilities in their favor. More cases (good or bad) increase probability of victory - period. That is what makes the judicial system less of a process of justice but simply an economic cost of doing business. In turn, those with legitimate claims become thrown in the "mosh pit" of numerical probabilities we foolishly call the judicial process.

FWIW Joe Moya

HOLY COW BATMAN! I can't believe I wrote this..."I be semi-literate".

I don't have a rpoblem with lawyers- this is not their "fault". Attornies are not "blame". Although the "system" is defective (IMHO) I feel ultimately the problem is athletes who use (abuse) the system:

"Between stimulus and response is our greatest freedom: Choice." (Stephen Covey).

We can choose to accept responsibility for our actions and negate the system in doing so. Geez, I apologize guys, part of me almost things I should have posted something about powercranks.... Less controversy.

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Tom Demerly
The Tri Shop.com

Tom, this is the only forum I read and contribute to as it has the best thinkers and astute triathletes of any I have read. Just keep assuming the risk of taking on controversial subjects. You'll know you done good when Robert jumps into it.

Bob Sigerson

to come up with one system or solution for dealing with this issue.

There are times when a race director could be negligent and someone gets hurt and there are times when racers take stupid chances or just have some bad luck and stuff happens. The reason that we have a court system is so that situations that are "grey" in nature can be assessed and have some resolution.

That said, using a situation like Utah last year (it's been mentioned a few times so I'll bring it up again), I really hope that any resolution favours the race director since freaky weather and 1500 type A personalties ready to rush in and swim in any situation doesn't strike me as negligent on his part.

Yes, this reinforces my point. I hope this doesn't smack of arrogance and it is not ANY criticism of those brave athletes who did Utah, but I frankly think I would have been too scarred to start the swim. I would have been tempted to go back to my room, get my camera and shoot the story as opposed to take my chances in what looked like the first 20 minutes of "Saving Private Ryan". I was not there, so this is utterly speculative, but I would like to think I would have not gone in the water. I would be too afraid to accept that risk. I'm not that strong a swimmer.

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Tom Demerly
The Tri Shop.com

I'm probably the opposite. I was not there either but I know that as a semi-lunatic who would have put in a ton of training and cash to get out to Utah I probably would have said F*** it, my swim will be slower due to the waves but I'll go for it and make up time later. I'm sure that many of the athletes that were there thought the same thing.

Joe,

I find most of your recitation not accurate based on my experience. Have you ever been in front of a jury? How many times? Let's just say I have been there a lot. Last case I tried had a jury that included, among others, two engineers, accountant, and a school principal.

However, I am interested in what recommendations you have for betterment because there are certainly are flaws. The tough part is that once you start chipping away at rights, we all become so confined. The tort system is actually based on responsibility that has been talked about so much in this thread - that is responsibility for wrongdoers in our society. Are there exceptions, flaws, aberations, just plain wrong, etc? Sure. But I would suggest to you most of the time it works.

These are my first of the morning thoughts. have a good day.

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

David,

Sorry if I stepped on any toes. Furthermore, I will agree with your statement above that most lawyers do a great job and are well worth the fees I pay them. Most CEOs do a good job as well, but that didn't help Enron or Tyco.

The point of the thread is responsibility. Look at the waves and decide whether you want to swim. Ask about traffic and decide if you want to ride. Sip your McDonald's coffee and decide if you want to drive away with it sitting in your lap.

Of course I use the extremes to make a point, but the pattern I described above IS happening to other industries. And, lawyers ARE getting rich doing it. I know. I do business with some of them. It's an industry now and I don't think we can turn it back. We're already seeing the cost of liability waivers rise but maybe this sport can be spared the worst of it. The pockets involved aren't as deep as the tobacco and drug companies and the participants tend to be a pretty independent lot, from what I've seen.

Which one of the following cases would you take if the person had signed a good waiver that had already been upheld on appeal:

1. Riding at about the 80 mile mark in a IM. Gets violently ill and veers into the outer lane and is hit by a car where two way traffic has been allowed to flow.

2. Riding along behind a pack(teed off at the drafters)when the official on the white horse(motorcycle)drives up, stops the drafter and stands him down for three minutes. The motorcyle stops in the roadway and even though you are elated, you can't get out of the way and hit the back of the motorcycle, doing damage to yourself and you 4000 bike and the motorcycle. Since the USAT does not dictate a 3 minute standown in their rules, would the waiver protect the official, motorbike volunteer, or rd.

Thanks for the imput.

Bob Sigerson

Bob,

All i do is contingency fee work. Based on your facts as presented, and the laws of my jusidiction, I don't see either one as a case. Of course I don't know if any facts are missing, etc.

Is this a test?

david

David, first one was a hypothet; second one actually happened. All I wantaed to find out if an attorney would take the either case and if not, I could assume the waiver is solid.

Bob Sigerson

Bob,

Based on the facts presented (skeletal) i think that you are safe on the waiver. Did you read my waiver post? Part is copied here:

Hand and hand with waivers is naturally this issue of Race Director liability, since that is what the waiver is for. I am a huge race director supporter. I think most work very hard, are under paid, and do a pretty good job.

One of the intents of the waiver, as you point out is to recognize and exclude known risks of the event that are actually part of the event themselves. Kind of like a pro football player "waiving" the right to bring an injury claim for being tackled. That is a known risk that is inherent in the sport, and not caused or enhanced by negligence. However, an overhead sledgehammer with a hockey stick would seem outside any reasonable bounds of expected activity (I think, I'm not a hockey player). For us, getting tangled with another competitor on the bike, although unwanted, is a risk, and it happens. This should absolutely be covered by the waiver, and I think is also supported by law.

I believe that we should not support waivers of negligence, and and the courts in my jurisdiction generally do not uphold the waiver in the areas of negligence. If you can waive negligence then you give the waivee free whim to be unsafe - certainly we don't want that. Of course the difficulty is the matter of interpretation.

To make a rather clear example, running a stop sign in your car and hurting someone is negligent. And, I would hope we agree that the victim should be entitled to a reasonable recovery for costs, expenses, etc. (Now, I'm not getting into what's reasonable - that is another discussion). So, what if, during a race, the race director is driving the course, runs a stop sign, and injures a participant who signed the waiver. Should the RD be immune from the consequences of the act due to the waiver. I say no. Likewise, if there are other negligent acts, that is a deviation from acceptable or reasonable behavior, shouldn't there be responsibility commensurate with the harm?


Good Luck,

david

Hey, that's an interesting point. IANAL, and I'm Canadian, but I'm curious who would be chased in that situation - the race director or his car insurance company? The rules of the road still exist (technically) even if the roads are closed, right?

Again, sorry this has become such a lengthy thread. My point is this:

Anything can happen during a race- Anything. You need to be comfortable with that prior to entering. My problem with the influx of people into "extreme", endurance or "adventure" sports is that some people (the minority I suspect) understand the risks are limitless, they cannot (and SHOULD not) be divided into "acceptable" and "unacceptable". It is the nature of sport and adventure: Opportunity for loss, opportunity for gain. Unpredictable outcome. Another (larger I suspect) group feels the race director has a "responsibility to provide a safe race". Well, therein lies the problem. Racing is not safe and things goe wrong. It is the nature of the activity and part of the allure. There seems to be a group mentality or emerging conciousness that "If everybody is skydiving (doing Ironman, bungee jumping, climbing Everest, etc.) it must be safe, perhaps the risks have been overblown." And the activities have become more mainstream with a higher degree of acceptance and participation. Because the sports are dangerous the body count gets higher too. Comes with the territory. What we do is dangerous. You can't waive that, litigate that, transfer that. Ultimately, we choose if accept the risks- all of them.

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Tom Demerly
The Tri Shop.com

Tom - Good Points

I think that the high media exposure of many of these extreme activities has given many people the perception that the activities are somehow "less risky". It's often not until you get into the situation and your own emotions, experience and skill get overwhelmed that you realize how serious the risk really is.

Example: It dawned on me one day 12 days into three week trek in Nepal 1995 that we were at least a 5 day walk from any outside communication. There were no roads and the nearest phone was at least 5 days walk away. What if I twisted my ankle badly. What if I fell really ill. What if I succomed to altitude sickness. I don't think that I changed my behaviour significantly, but in this situation I was not going out of my way to court further risks and exercised caution in what I was doing so that I knew I was in control at all times.

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Steve Fleck @stevefleck | Blog

My opinion? (I think I am becoming hypothetical lawyer!) If there was negligence and if that lead to a foreseeable loss, and if there is not a "closed road" or "race" exclusion from the standard auto policy in that jurisdiction, then I think the auto insurance would apply.

How's that!

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

Yup, My point exactly Fleck. and hats off to you- becasue you were cognizant (sp?) of the risks and acknowledged them. You did not transfer the responibility to anyopne else. You realized them and accepted them. You're a good man Fleck (I'm assuming you're male, I apologize if I'm wrong).

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Tom Demerly
The Tri Shop.com

Tom,

I bet we agree on more than you think. However, I am not sure that you fully understand the concept of risk, from a legal point of view.

Let me try another example that happens to be true:

We had a criterium here locally. Guys fell, hit curbs, ran into each other, got hurt, etc. They did accept those risks..."all of them." However, a bad event did happen. A car ran through a baracade (stop sign too) and hit a few guys at the back of the peleton, hurting a couple guys pretty badly. They brought claims against the driver for their losses and damages. Note, this is a risk too and falls under "all of them." Surely you are not against their right to be compensated for their loss, and they didn't ultimately choose to accept that risk, right?

How are we doing? BTW, I agree completely with Fleck too.

Thanks,

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

I hope my being an attorney is neither incentive nor disincentive to agree with me. I only threw that fact in to show where I am coming from. Anyway, one of the things I learned in law school as that most areas of law dealing with realms of basic human interaction (contract, torts, property) have rules that are very common-sensical and efficient. The is best illustrated in torts and especially in negligence. At base, we all have a duty practice due care to one another. What care is due is judged by how a reasonable person would act under the circumstances. Nobody expects a reasonable race director to account for all risks that may be encountered during a race, only the ones that a collection of, at best, the RD's peers (if not just lay people) would deem reasonable. To say otherwise would subject the RD to an inefficient, if not insurmountable, task. You say that differentiating between acceptable and unacceptable risk is "invalid." I am not exactly sure what this means. People make distinctions beween acceptable and unacceptable risk all the time. At a race, both the RD and the athletes make these decisions as well. When this calculus goes awry and the time comes to determine who is liable for an injury, I don't see why you would automatically shift the burden of dealing with all risk to the athlete. Certainly the athlete bears some responsibility, but so does the RD. Afterall, the RD is familiar with the region, the weather patterns, the terrain. If nothing else, it is more efficient to make the RD responsible for some risks because dictating that each athlete learn everything the RD knows or should know would be untenable and elevate every race to the equivalent of an expedition. Ultimately, our responsibility to ourselves and one another is best seen as a continuum that continually shifts based on circumstances. In my opinion, anyway...

... And therein lies the very nature of risk my good man. It is unpredictable. You are correct: A race director cannot know all the risks, nor can an athlete. But both parties know their are common risks and extraordinary risks. This affair of differentiating between the two I do not understand. You do a good job of explaining it in some terms, i.e. when selling/buying property, contracts, etc. But I don't (personally) believe risk/danger can be "subcontracted", transfered or assigned. Imagine: "O.K., sudden heart failure, collision with vehicles who invaded the course despite marshalls, mechanical failures resulting in death/injury- those are your responsibility as athlete. Disease producing germs in the water, starting the race in dangerous weather conditions, those are the RD's responsibilities- death by lightening strike, aircraft crashing into competitors- those fall in that void known as "act of God". I fail to recognize those distinctions. and I think, therein lies the source of our dischord on this topic. Your thoughts are well informed and appreciated.

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Tom Demerly
The Tri Shop.com

in any given situation does not mean that nothing is reasonably foreseeable. (I just read what I wrote; of course, nothing is foreseeable in a literal sense, however something can be reasonably anticipated and that is what I am talking about.) The risks that a party can reasonably foresee are the ones they are obliged to guard against or assume. Different risks are foreseeable to different parties based on different information available to them. The crit example above is a good one. In the event of an injury, cost must be allocated to someone. Tom, and others, suggest that because anything can happen, and we all know that -- at least theoretically -- anything can happen, then the person to whom something happens should, based on nothing other than their status as the victim, bear all of the cost. We have limited this discussion so far to civil liability but, in principle, why should we? This rationale could just as easily apply to criminal liability, couldn't it? If not, why not? Obviously, this is rhetorical, I assume that we all agree that a murderer, an not the murdered, should bear the cost of the murder. But under Tom's framework, I can't sue the murderer on behalf of the estate of the murdered and their spouse for any sort of monetary damages. Is this the way the system should work?

Tom,

First, I have the highest respect for you. OK? That is a given.

Why haven't you addressed any of my examples? Are you just asserting contrarian opinions for fun? That is ok of course.

The difference is inherent risks (no liability) and risks caused by someone who is at fault, which the law defines as negligence and there is liability. Take my bike race real story from above. Does that not illustrate a clear difference? How is a car breaking the law, invading a course, running a stop sign, etc the responsibility of the athlete? What if a car runs a stop sign and hits you on the wy home tonight...is that just hard cheese. Don't pay for the car damage or anything? I really don't understand when you say you should accept "all risk" and that all risk is the same. Clearly it is not.

I won't give up on you, just don't give up on me.

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

David & Garth, in my second scenario, the motorcycle was directed to stop for a countdown penalty of 3 minutes. The motorcycle stopped and idled on the right hand side of the road. The rules state that unless a bicyclist is passing another bicycle they must stay on the right hand side of the road. The bicylist runs into the back of the motorcycle, injuring himself, the bicycle and the motorcycle. Do you thing the bicyclist's signing the waiver and assuming the race risks protects the rd? Or is this the same thing as you and I riding down the street and a person opens their car door on us?
In the car incidents, there is redress against the tortfeasors, the drivers. In the case I cite, if the waiver holds, you're stuck with $25,000 excess accident insurance from USAT or your own personal insurance if you have it. If the crash caused brain damage or paralysis you're a goner.

Bob Sigerson

It is tough to answer your hypothetical question about the collision between cyclist and motorcycle-born marshall without a better understanding of what happened. However, absent any dramatic swerves, squealing brakes or some other notable "oh, shit" moment, I have a hard time imagining that the marshall's conduct as anything worse than simple negligence, in which case the waiver covers the RD. Cycling in such a way that one cannot avoid readily apparent hazards is not reasonable and thus, even if the marshall was negligent in parking his motorcycle in the way of oncoming cyclists, the cyclist was probably contributarily negligent by riding his bike in such a way as to hit the motorcycle. Maybe I am not understanding everything that lead to the accident, though.

Sig, if you are talking about a real situation, with real injury, you should talk with a real, live attorney who can review the waiver, look at the law in the applicable state and give you good advice. Many personal injury lawyers will do this evaluation for free or a nominal charge. If you are just exploring the topic, rock on.

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?

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

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.

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.

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

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:

1) 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.

2) 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.

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.

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

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.

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

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!

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

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

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!

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

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,

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

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.

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!

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

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 [happy] (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!

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David
* Ironman for Life! (Blog) * IM Everyday Hero Video * Daggett Shuler Law *
Disclaimer: I have personal and professional relationships with many athletes, vendors, and organizations in the triathlon world.

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