Elizabeth Shin, a student at MIT, committed suicide. Her parents sued MIT and others. A trial judge has dismissed the case against MIT but allowed it to procede against two psychiatrists and two administrators who are not mental health professionals. This article in the Boston Globe has a nice discussion of the legal theory advanced by the plaintiffs and accepted by the trial judge.
The plaintiffs are pushing the envelope on this one. However, as I said to a fellow plaintiffs’ lawyer the other day, there are only two types of lawyers who make common law – those that are stupid and those who take calculated risks.
Let me explain. Some of us take cases with full knowledge that we are going to have to advance the law to get to a jury. Some folks take cases with no idea that they have no right to recovery until they see the motion to dismiss or motion for summary judgment. The problem with the latter approach is that some cases do not have the right facts to make good law or the facts are not developed appropriately to make good law. Similarly, if you don’t know you are pushing the envelope it may be hard to muster the best arguments in the time period allowed to respond to a motion.
Legal research may be boring, but whenever a case does not fit into a well-defined, long-standing pigeon hole it makes sense to do a little homework first and get a reading of the legal landscape. Any “new” (i.e. less than 20 years old) theory of recovery or any theory not routinely a part of the appellate decisions in your state is probably not mature enough to assume that the law is stable.
I am all in favor of pushing the envelope in appropriate cases. The key is selecting the cases where the envelope should be pushed, and then developing the facts and mustering the arguments necessary to give it the best shot.
You can’t break the sound barrier in a Piper Cub.