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Taking the Law into Her Own Hands

When Amy Breyer left the news business to attend law school, animal law was still largely unheard of. But Breyer carved out a niche for herself helping owners of wronged animals in the Chicago area. In this excerpted interview, Breyer spoke with

When Amy Breyer left the news business to attend law school, animal law was still largely unheard of. But Breyer carved out a niche for herself helping owners of wronged animals in the Chicago area. In this excerpted interview, Breyer spoke with Animal Sheltering’s associate editor, Carrie Allan, about the progress and future of gaining legal protections for nonhuman species.

Amy Breyer snuggles with Bob, the kitty companion who started her thinking about animals’ desires, needs, and rights—a thought process that eventually led her to law school and a practice specializing in animal law.

AS: Can you tell me a little about how your interest in animals got started?
AB: I always loved animals. I never really gave it much more thought than that until I was in about my mid-20s and the guy I was living with got me a kitten for my birthday. And he said, in not quite so many words, he was going to start with a cat and wanted to work me up to a kid. … I was about 24 at the time and that did not go over well at all.

AS: So you kept the cat and not the guy?
AB: Exactly. Not what he was expecting, I suppose. But it was just in getting to know this one particular cat and becoming friends with this particular cat that I really started to realize that this particular cat—his name was Bob, may he rest in peace; this was a number of years ago now—Bob and I were a lot alike.

AS: In what ways?
AB: We both were stubborn and we both had very strong personalities and we both liked to eat and we both liked to nap in the afternoons—although he had a lot more opportunity to nap in the afternoon than I did. But I kind of came to realize that if I had feelings about things, he clearly had thoughts and feelings about things as well. And I started to realize how vulnerable he was, but for my good graces, basically. And then I started thinking, Well, if Bob has thoughts and feelings then maybe other animals have thoughts and feelings. And it just sort of crept up on me. I mean, I always loved animals, but I never really thought much about it until I observed Bob and how Bob really had a separate life that had meaning and value to him.

AS: What were you doing at the time of this revelation?
AB: I used to work in news. I was a writer and producer.

AS: So the love for animals came first, and then you got involved in the law?
AB: Yeah. Well, I kind of realized that I wasn’t really crazy about what I was doing. I wanted to do something to advocate for animals. … And then I just thought, to my mind, the most powerful tool you have is the law, and I could probably effect the most change with a law degree.

AS: Was there a particular event that occasioned that? Was there something that really settled it for you?
AB: As a matter of fact, yes. One day I was sitting at work and a story crossed the wires about a guy that had been convicted for killing a puppy. If I remember the story correctly, the puppy had soiled the carpet or something and he kind of beat the thing to death. And I just thought to myself, I don’t want to be telling people about this. I want to be nailing that guy’s butt to the wall. And at that moment, a little light went on in my head and I knew I wanted to be a lawyer. At that point I’d been married for a number of years, and I was over 30 and I just thought, I’m too old. I can’t go back to school. My husband and I were in the process of trying to buy a house and we finally found something we really liked, but it would have obligated me to work at this job I wasn’t crazy about for the next 30 years to pay the mortgage. And at one point he and I were taking a walk around our neighborhood with our dog and I just sort of blurted out, “I don’t want to buy the house; I want to go to law school.” Which was the first he’d ever heard this. … Much to his credit, he just sort of looked at me and said, “Well, if that’ll make you happy, OK.”

AS: And since you’ve gotten involved in this, what are some of the most interesting and important cases you’ve worked on?
AB: Well, 99 percent of my caseload is companion animal at the moment because those are the kinds of animals that come with people who are looking to hire attorneys. I’ve had a whole array of cases—veterinary malpractice, condominium zoning issues, some due process kinds of issues, consumer fraud, various torts and negligence. I try to pick things out as carefully as possible to kind of push at the law where I can. I just had a nice appellate decision come down about two months ago where a woman had brought her cat to be boarded while she was on vacation. It happened to be a vet’s office but it was just for boarding. She brought it to the vet because she thought they’d take better care of it than just a regular kennel. So the vet tech let the cat out of the cage for some exercise one day, and she let a rottweiler out of its cage in the room where the dogs were kept, and apparently [did] not close the door securely between the rooms. And you can see where this is going—the rottweiler runs in and kills the cat. And my client was devastated. We went to file suit. We tried to deal with the insurance company, which didn’t really take us seriously. The trial court didn’t really want to deal with the claim and basically tossed me out of court saying, “You don’t really have any damages because it was a cat.” And the appellate court reversed that and said that the client’s pain and suffering can count as a part of your damages.

AS: Where have you seen the most change and progress over the years that you’ve been involved?
AB: To me, so far I think the biggest change is that it’s not completely unheard of as it was even ten years ago. I know at the time I decided I wanted to go into animal law, I made it up in my own head. I never even knew it existed, and then I read an article about Steven Wise [a lawyer and author who teaches animal rights law at Harvard] and I was so delighted that someone else had actually thought of this ahead of me and I was not totally alone in the universe. And now it seems like it’s the flavor of the month, and you see a lot of articles all over the place starting to pop up, and I think that it’s good because it exposes people to the concept. And it’s going to take a long time, I think, before society as a whole really mainstreams it, but it’s definitely a lot closer to the mainstream now.

AS: A lot of people hear the term “animal rights” and start saying, “Oh, are dogs going to get the right to vote?”—which is obviously absurd. But what are you looking to see happen in the law for animals?
AB: I think the law should take into account the intrinsic value of nonhuman life. Over the course of the last hundred years … this country has really led the world in many respects. It used to be only a very narrow demographic of people were objects of concern in the law. If you weren’t white, if you weren’t male, if you weren’t Christian, you just didn’t count. … To lesser extents, children used to not be regarded under the law: they were property of their parents. Ultimately it’d be nice to take animals out of the status as property. What you do with them then is a big open question: Do you necessarily make them persons? You know, there may be some other interim, median, compromise position, but that raises questions. There are currently things that are not persons but are persons under the law.

AS: What are some of those?
AB: Ships, corporations, towns. Those are all considered persons under the law, and clearly they’re not persons by any common-sense understanding of the term. … They are an aggregate focal point of human interests.

AS: Do you have any advice for people at the local level who want to change the laws in their communities and advocate for animals?
AB: Sure, just get yourself in there in whatever way you can that is near and dear to your heart. … You don’t need a law degree to work on legislative issues. It’s always helpful to have a law degree as a background, but certainly if there’s some local issue you feel very strongly about, lobby whoever is the appropriate legislator, whether it’s to put in a dog-friendly park in your local community—or if you live in one of the few remaining states that doesn’t have a felony provision for animal cruelty, then lobby your state legislator. … You could lobby a federal lawmaker to amend the Constitution to provide for rights of animals. That’s probably going to be an uphill battle and you’re going to feel like you’re banging your head against a wall, but yes, you can work on rights issues, too. I think to the extent that, whenever a state, for example, enacts a stricter cruelty law, technically that’s a welfarist measure, but you can also view it through the lens of “This animal has a right not to be treated cruelly as defined by X, Y, Z in the state statute.” Every time there is some better measure enacted, every little bit helps to chip away.

AS: There was a recent article in Trends, the magazine of the American Animal Hospital Association, where the author wrote about the increasing incidence of people suing for “noneconomic” damages. Veterinarians often claim that it will cause insurance costs to rise in such a way that it will price lower-income pet owners out of the market for veterinary care. What do you think about that?
AB: I think it’s a good and valuable trend in the law because it’s really the only mechanism we have to really force people to think about their conduct. We live in a society that adheres to the rule of law—which I do think is a good thing—and we have certain mechanisms for things. You know, if you run me over in your car, I can sue you, but it is not OK for me to get in my car and run you over back. So the mechanism for holding you accountable for your behavior is through monetary penalties. And I think that that concept does need to be extended to companion animals to get people to recognize that these are also family members. And I think ultimately it might be possible to extend that concept to some degree to other types of nonhuman animals that are not companion animals. But that becomes a much harder sell. You get that same problem even in people law: If two people get run over by a bus, if one person was a single mother of four and the sole manner of support for four minor children and was beloved in her community and volunteered at the church, and the other was a prison convict who was never gainfully employed and had no family or friends whatsoever, [when] those two cases go to trial, the person who had the family, had the job, was contributing to society, does get more in damages than the person who wasn’t. And so to that extent, yes, the dog who was a member of a family, that life would probably be valued at more than a wild animal roaming around the forest. And that’s probably going to upset some people to read that, but the same concept that applies to humans at best would be extended to animals.

AS: How would that affect issues like farm animal welfare? Because that would open a whole new issue in terms of the value of the animal and ownership.
AB: I think there are perfectly valid reasons not to treat farm animals the way they’re treated, but the concept of extending noneconomic damages to farm animals—we’ll never see in our lifetime. But almost all my cases involve issues of noneconomic damages. I think that looking specifically at the veterinary community, arguments that bigger damage awards are going to price veterinarians out of range for consumers are specious. And the reason for that is severalfold: First of all, similar arguments have been made in people medicine for many years, which have not been borne out. … The Association of Trial Lawyers of America has done a lot of studies of these claims, and they have found that in states where the legislature has enacted a cap on noneconomic damages, there has not been a corresponding drop in insurance premiums for doctors. Basically what they’ve found is that the insurance industry had made a lot of bad investments back in the ’80s, and when those investments tanked, one of the things the insurers did to recoup their losses was to raise premiums. It had nothing to do with jury awards. Another reason why I don’t believe that an increase in damage awards in vet cases would lead to higher costs for consumers of veterinary services is because those veterinary costs have been so suppressed for so long. … Basically vet insurance rates are so low, and have been so low for so long, that those rates could be tenfold and still be far less than any human doctor’s rates. So I think those claims are kind of Chicken Little, “the sky is falling” sort of arguments that really just won’t hold up over time.

AS: Some of the work you’re doing has implications for animal shelters. We hear now and then about shelters where harried staff have adopted out—or worse, euthanized—an animal who turned out to have an owner. Do you have any ideas about what shelters should be doing to make sure they’re protecting themselves?
AB: That’s really more of a policy question than a legal one. Shelters—like any other businesses—may be harried, but an ounce of prevention is worth a pound of cure anywhere. My feeling is that any business should always strive to have the best possible procedures in place, and really emphasize with staff the need to always perform all work in a professional manner all the time. Will accidents still occur? Sure. Should that save everyone from liability all of the time? No, I don’t believe so. The question of negligence, for which someone can be held liable, is more complicated than whether something bad just happens to occur, for which someone can only be held liable in very particular types of circumstances. But as far as the noneconomic component of damages are concerned, think of it this way: if I run you over while driving to the grocery store, will your family suffer any less at your death knowing that I was just really harried at the time?

AS: Do other lawyers understand what you do? Have you had to deal with a derisive attitude towards animal issues?
AB: By and large it hasn’t been too bad. I always think back to a story that Steve Wise told me, that when he first started doing animal law he used to walk into court and opposing counsel would bark at him. I haven’t had anybody bark at me, so I always feel like I’m doing well. Sometimes it takes people a while to get it, but ultimately whether it’s opposing counsel or a judge or what have you, when they see that I show up for court on time and I’m in a suit and I come prepared and I know the law and I know the facts of my case, eventually they realize I’m serious.

AS: What have your most gratifying experiences been so far?
AB: I had one judge a couple of years ago rule against me on every little point for like eight months. [I had a case before him where] the defendant had brought a motion to transfer the case down to small claims court, stating that there’s no way that the dog could have been worth more than $5,000, which is the jurisdictional maximum in small claims court. And I had brought in my client to testify at the transfer hearing. This happened to have been an elderly widow who also happened to have been a Holocaust survivor who lived alone with the dog that died. And at one point I said, “Mrs. Client, if you had a choice between a million dollars or your dog, which would you pick?” And she very resolutely and immediately said, “The dog.” And defense counsel was very upset and he jumped up and was trying to yell “Objection!” and the judge told him it was overruled. And the judge ultimately decided to deny the motion to transfer, stating that he would not say as a matter of law that the dog was worth less than $5,000. It was a purebred; it was purchased for $1,000 but was neutered and was five years old. It had no value; it was her personal pet and there was nothing else to be done with the animal except have it as a pet, and the dog was so accustomed to her house and her ways that I would make the argument it wouldn’t really be much of a pet for anybody else. So clearly you have something that does not have an economic value over $5,000, but the judge recognized it might have this noneconomic value and he refused to transfer the case down to small claims. And so when you have a little light bulb moment like that, to me that’s really gratifying. I wish it happened more often.

For more information about Amy Breyer’s legal work for animals, visit www.animallawonline.net.

 

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