Lawyers Don't Have Magical Powers
We can't gum up any process with lawsuits unless the rulemakers let us do so
As a horse racing fan, I am following the Bob Baffert controversy with interest. Baffert is the trainer of the first place finisher in the Kentucky Derby, Medina Spirit, who failed an initial post-race drug test. The normal procedure in horse racing is that there will be a “split sample” test, i.e. they send only half the urine or blood sample from an initial drug test to the lab, and when a test is positive, they send the second half of the sample to a different lab. This protects a trainer from being unfairly suspended based on a contaminated sample.
If that were the entire story here, this would be fine. But what you have to understand about horse racing is that it is regulated by state racing boards and commissions who are historically very friendly with the top trainers, and the top trainers use all sorts of “medications” to improve their horses’ performance. This is a classic example of what economists call “regulatory capture”, where a state agency intended to regulate a profession instead becomes protective of it, because it is staffed by members of the profession and their friends and business associates. For instance, it is not uncommon for a state Department of Insurance, supposedly regulating bad behavior by insurance companies, to become very pro-insurance industry, as it gets staffed by industry experts who have worked in the industry, or may do so in the future. There is a similar problem in my profession with State Bars.
So the racing commissions have a history of finding reasons not to punish trainers, or imposing laughably light punishments such as “suspending” a trainer for a short period but allowing the trainer’s horses to continue to run under the name of the trainer’s assistant. And the “split sample” issue has become a mechanism for some of that gamesmanship rather than a mere due process protection to ensure a trainer is not railroaded by a lab error.
A modern drug test can come back in 24 hours. The Kentucky Derby drug test took a few days, probably because they don’t pay the labs enough to expedite the test, but still, a few days would be fine. But the split sample, we are told, usually takes weeks. Why? Well, the Kentucky Horse Racing Commission blames my profession:
Now, obviously, I have an interest in the reputation of my profession, so you may certainly take that into account, but I would say that Dr. Howard’s statement plays on a fundamental public misunderstanding of what lawyers can do. And that is this: lawyers do not have magical powers; they have only those powers that the substantive law allows us.
For example, under the laws that prevailed before the pandemic, lawyers could not generally delay your eviction if you failed to pay the rent and you had a decent landlord who was not delinquent in her obligations to repair and maintain the property. Why? Because states have unlawful detainer laws, which provide for three day notices, “nail and mail” service of process, and expedited trials of rent disputes. They work. If a tenant’s lawyer tries to slow up the process, the courts will issue the necessary orders to prevent this from happening.
In other words, if a legislature, or a regulatory agency, wants to make it really difficult for lawyers to slow up a process, it can do so. There is very minimal due process- nobody can kick you out of your apartment, or take away your trainer’s license, without notice and a hearing. But the “notice” can be short of a formal personal service of process where you can try to dodge the process server (notice need merely be reasonably calculated to inform you of the proceeding, under what is known as the Mullane test), and you can be restricted to very narrow defenses at the hearing (i.e., if you can prove you actually paid your rent, or tried to, and the landlord did not accept the payment, or if you repaired the apartment and had to deduct the costs from your rent, you might win the unlawful detainer proceeding, but other defenses are cut off by statute).
So when a doctor working for the Kentucky Horse Racing Commission blames lawyers for delaying Medina Spirit’s “split sample” test, what he’s really saying is that the KHRC has written rules that allow lawyers to delay the process. Why would the KHRC do that? Certainly not for any reason related to integrity of drug testing or the sport- from that standpoint, wouldn’t you want to know as soon as possible whether the positive test was valid so you could take swift and decisive action? No, the KHRC does this because it’s an under the table mechanism to help out their buddies who train horses and want to use their “medications”. And normally, since positive tests don’t involve Kentucky Derby winners, they get away with this and nobody says anything.
The point about the legal profession is this- how many times does something happen and someone immediately says “you can sue!”? Or simply that “they will sue”? It’s true, nobody will stop you from going to the courthouse and filing a lawsuit. But whether or not that will delay things any depends entirely on the rules that are laid down. If rulemakers don’t want lawsuits to delay processes, they can write rules that prevent that. When you see lawyers blamed for delaying something important, it usually means someone writing the rules wanted it to be possible for lawyers to delay something important. Blame them, not us.