Do-It-Yourself Law-Making That Stands Up in Court on Malpractice

By Nick Levinson

A merely private organization in the U.S. can legislate to define a standard of care, violation of which is malpractice. Many courts will accept this for professionals facing malpractice complaints. Congress and other government legislative bodies, as long as they don’t contradict the private standards, can be more or less ignored for this purpose. Contracts are not required for this. And anyone can create the organization.

The key is that cases of malpractice for any profession are commonly decided by courts on the basis of what other people in the same profession and the same community do that they present as sufficient to meet the standard of care to be applied by the court to the case at bar.

Granted, it’s not easy. The process has a series of steps that will take time to complete, and legislating will come later. Suppose you wish to legislate, privately, for widget-makers.

This works best if there is no national organization of widget-makers. If there is, carve a professional niche that makes your organization unique. For our purposes, we’ll assume the niche is of widget-makers, but it could be of makers of steel widgets, wearable widgets, self-driving widgets, or anti-leukemia widgets.

Form a national membership organization to represent widget-makers. Be a nonprofit. A name like American Widgets Association or Council shows that you’re already at the top.

Persuade people to join so that more join your organization than any other organization that could be competition for your professional niche. Usually, if someone says, “don't let Joe join, he’s lousy”, ignore that advice unless most of the nation agrees that he’s evil. Even then, since your membership roster is likely private, it’s probably only an issue if he becomes visible as a leader. Numbers carry water. Local organizations, organizations that represent according to much wider definitions (such as an association of manufacturers of all kinds of products), and single-issue organizations (such as on tax reform) are generally not competition, and you should consider cooperating with them on mutual interests. Maybe share mailing lists and recruit.

Recruit new members so that a supermajority of the members are widget-makers, with some in allied fields, such as parts suppliers, distributors, retailers, widget industry media, and widget users. Limit the duties of most members to paying dues (they have businesses to run and families to see so anything more and they’ll scream or run), keep the dues low to encourage more memberships, set dues to be proportionate to likely income without asking how much they made last year (e.g., give students a discount), and have membership meetings somewhere with officers present (probably annually, quarterly, or monthly). Increase engagement by creating ways for some members who are reasonably credible to get elected annually as organizational leaders (slates are okay), to sign up as committee members anytiime, and so on; while single-person efficiency goes down, the more officials your group has, the more credibility it gains among members, prospects, and other stakeholders, even though some will turn out to be virtual deadweights and a only a subset will be valuable for their work performance. It’s almost always a cakewalk to engineer a victory, since most dissenters tend to leave long before elections roll around. When you can afford it, hire full-time staff to carry concentrations of heavy workloads.

Create local, state, international, and, possibly, topical subunits and keep their duties minimal, to make it easier for subunits to stay afloat and visible. For example, do not require subunits to budget for staff positions. Legally, keep the subunits at arm’s length from the national, so they do their own incorporations, tax filings, and so on (and if they don’t you’re not responsible), while you keep issues coordinated and consistent. Let subunits identify local issues they can act on, with your approval. Allocate all members to geographic subunits, so that being a member means being a member of the national level and of any appropriate geographic subunit. Permit topical membership (simultaneously with national membership) for those who may share the interests, but don’t require that of all members. Require other units to structure similarly to the headquarters except simpler. One dues amount is enough for one person’s membership in all relevant units.

Publish a membership directory designed to increase business for members. A plain listing should cost the member little or nothing. Non-members should pay more for plain listings. Larger ads and ads with graphics can be expensive for everyone. Anyone seeking to sell goods or services directly to many members should buy full-page four-color ads and maybe buy the covers. Toss in a few timeless articles of advice for members.

Create newsletters and other internal communications, probably monthly by mail or weekly by email, and always have some news, good and bad, about the world in which widget-makers operate. Supplement press releases with your own phone calls to gather news. Carry exciting news from subunits, so it’s not obvious that half of them are sleepyheads. Finance these communications from the low dues and from ads, not from subscriptions (except for nonmembers). Have an office that answers members’ letters. All these communications implicitly remind members of the benefits of paying dues, which improves your renewal rates.

Institute good financial controls, with your accountant’s help. Try not to have internal management scandals and, if you do, aim the spotlight sonewhere else. If you sweep embarrassments under the rug and it’s getting so lumpy under your feet you’re about to trip, change something major and announce how proud you are about your new leadership team, new direction, or new whatever-it-is. Scandals are bad for a long time, so keep controls tight enough to prevent them.

Enhance your credibility. Add symbols of prestige, although without going overboard for your size and budget. Instead of a gold plaque, get brushed aluminum with a few tasteful curlicues (almost any curlicue is tasteful). Look a little more prominent than you are. Seek publicity. Create a beautiful, informative, and easy-to-use website and check, mainly in Google, that you come to the top in search engine results for widget-making. Get your organization into various directories.

Respond to mass media and trade journals about widget-making, and educate them about widget-making and therefore about your organization as the “go-to” on the subject. Take the lead and create original content for these media. Make yourself and a few supposedly-typical members available for interviews. Hog the spotlight for yourself, to keep your message consistent, except let other officers and PR people of yours practice with minor interviews and save you time. Be a clear communicator, reaching more people. If you get to choose between mainstream and fringe, ditch the fringe. If you have a subject no one’s asking you about but which you need to get out, write a report just thick enough that few will dispute your expertise. Add an “executive summary” to the front. Call the whole thing a “report”. You can charge a much higher price for a “report” than for a “book”. Same product; bigger checks.

Go to conferences important to widget-making and plan to start your own annual conference specifically for widget-makers. These events cost money and take good logistical planning but they also generate revenue (such as from sales booths, directories, and advertising) and should produce a substantial surplus. Dinners can be good fundraisers, as you can sell tickets. Members who want to show you their leadership potential or their importance as allies of yours can sell tickets for tables of ten guests each. To avoid shocking anyone, serve chicken.

When you travel to another city, visit a widget-maker at their workplace and run a photo in your publicity. This will show that few politicians were ever as thoughtful as you are. Whether this would make your travel to the city tax-deductible is a good question for your tax counsel.

Ask government agencies, especially in Washington, to support your issues. Even if all you get back are polite form answers from junior interns, that builds your name recognition, and politicians treasure their own “name rec”. Comment on legislative and regulatory proposals (the latter have a formal process with deadlines); if your attorney drafts, you can sign. Report to members about your governmental relations, and don’t call it lobbying, which would be beneath your dignity. You educate office-holders about important matters of the day. If political relations are important, create a political action committee (PAC), separate and with its own revenue stream and legal obligations, to channel donations to visionary elected officials (usually incumbents) and candidates who understand your members’ needs, but not to judges who run in elections (lawyers give to them and you should select those lawyers when you need politically-connected judges to be persuasive for your cases).

If much litigation is needed, create a legal arm, either an office or a separate organization. A major litigation program can be enhanced by “friend of the court” briefs for other parties’ appeals, selected and written by attorneys.

Create a charitable arm. Perhaps to help poor widget-makers, perhaps a business incubator, perhaps a program to distribute surplus widgets to the needy, perhaps advanced research, perhaps scholarships for members’ children: something that members will feel good about and that can be cited if you get criticized for anything. Reduce controversy further by giving small grants to many recipients rather than large grants to a few. If the program is getting large enough, look into tax deductibility, perhaps by spinning it off as a separate organization under your main name and leadership. Tax deductibility increases your fundraising. Report, annually, online, your charitable accomplishments.

Try to collect awards for something or other that your organization does, at least one a year. The Nobel is not easy but some are, and many of the easier ones have prestigious-sounding names. Tell your members about what you won.

Offer short educational programs with completion standards that are not so rigid that few members can be certified. Leave the more rigorous standards to universities, but call your standards rigorous. Help members feel proud. Minimize prerequisites other than fees. Minimize reading matter, to save on copyright licenses and prevent intimidation, but add dark dignified covers to the bindings. National accreditation for your educational programs is probably too expensive; ask a college graduate (a two-year degree could be enough) to glance through your literature and write a brochure about your esteemed quality that’s second to none. If enough members have thick wallets, host the educational programs on very large cruise ships that visit several ports. On-board swimming pools, first-class musicians, and dinners with seagoing captains reputedly lead to high educational achievements. Counsel can advise on the rules on tax-deductibility. Base your certificates on attendance, since administering exams would be beneath your dignity and that of your members. Issue certificates on textured off-white or ivory paper with old-style lettering, two signatures each (if an intern has your permission to sign for you it’s not forgery), and frame them in wood or metal with glass, because you have to justify the cruise fees.

Now, when you set standards about widgets, you’ll fortunately have fame and credibility. Few outsiders will notice how you got it, just that you did.

Formalize membership standards. Say what a good professional widget-maker should do or refrain from doing. Cover lots of points, because that shows that you are experienced and thoughtful. Fill several pages in a relatively small font size, but not ridiculously tiny. Don’t write much puffery, legalese, or Latin, but do write many short paragraphs. Write these standards as grounds for terminating someone’s membership, although you’ll almost never do it as long as the member pays dues and doesn’t commit a terrible crime. Even if complaints roll in, ejecting someone could discourage other members and could cost you in defending a lawsuit from the unhappy ejectee. But the standards will look good. Have a process for updates. Place enforcement under a committee, and appoint only prestigious members to it, probably lawyers. Publicize the standards and how to complain, publicizing through your internal communications, website, and so on.

Encourage members to apply the standards. Educate them on specific standards. Issue public recognition for outstanding compliance and for going above and beyond.

Now comes a payoff. When Chris Doe sues Pat Doe for substandard widget-making, either party can find expert widget-makers in the defendant’s community who can testify that they follow the standards and the defendant did or did not. This is not in the organization’s court, but in a real court of law with State judges.

This has drawbacks. It has its pluses, like if an engineering society writes cost-free safer standards, so that future public works are safer at no additional cost. And this method does not lower standards below those of government, when the government’s standards are law. These private standards probably won’t rise to the point of hindering market entry, because they won’t be that powerful. But that leaves weak and inconsistent enforcement, a practice of membership organizations under their standards, which leaves open a debate on whether hardly-enforced standards are better or worse than no standards. But the consensus of professional organizations across many fields seems to be that standards, even weak ones, are better than no standards. And your members would likely have expertise to share for public benefit.