I think therefore I am. Life is what you make of it. The one thing you can always change is: your mind.
These sayings reflect the famous French philosopher and mathematician René Descartes most well known statement “Cogito ergo sum” translated into english “I think therefore I am”. As Elon Musk recently put it, although not the first to suggest it, we could all be inside a giant computer simulation. Something akin to the Matrix or Plato’s Cave. See Mr. Musk’s interview below:
What does this have to do with the law or personal injury?
On a fundamental level, the idea that we are in a computer simulation, cave or even the Matrix is an idea that conflicts with what we generally accept as our existence. The ability to consider these possibilities, despite evidence to the contrary, is a hallmark of what makes a good lawyer.
A good lawyer recognizes the power having and choosing options. Sometimes those options are in the form of what is reality or sometimes those options are presented in terms of litigation. Do you file suit right away or do you try to negotiate? The ability to think up another solution and present it in terms that everyone can agree on can be critical to resolving a case. But, these ‘third way’ options generally aren’t presented to you, you have to put in the work and time. In other words, it’s up to you (or your lawyer).
I have jokingly said this to friends and family when they ask about a potential lawsuit. For the most part; it is true. If that ham sandwich had some ham bone in it with no warning and you choked on it, then there might be a case. Maybe the ham was spoiled and you got food poisoning, that might be a case. But when someone says you can sue a ham sandwich, they most likely aren’t concerned about the quality of your pork product. Rather they are illustrating a widely held belief that lawsuits are frivolous. My earlier post about the Liebeck case touched on this briefly.
Despite the perceived overly litigious nature of Americans, believe it or not, lawyers are compelled by the rules of professional conduct not to pursue claims that are frivolous. So why then is there a persistent belief that lawyers do file frivolous claims? That is too large a question to answer in a blog post, but at least part of the explanation lies in the harsh consequences of not suing. A few of those are outlined below.
Generally speaking, almost all causes of action (right to sue) have a statute of limitations. After a certain period of time, if you have not filed the case, you lose your ability to pursue that claim. It varies in each jurisdiction and it even varies based on who you are suing. One sure way to get a lawyers blood pressure rising is to mention the words tort claim notice and governmental entity. Thats because often governmental entities will require notice of a potential lawsuit within a matter of weeks from when the accident occurred. So, if an attorney gets a case a client sat on for a couple of years and finds out the statute of limitations is about to run, in order to protect himself and his client he may have to file the case without the full picture. It could so happen that claim turns out to not have any merit as the discovery process progresses. Of course the lawyer should withdraw from that case if it truly is merit less.
Sometimes it is hard to know who is at fault and everyone needs to be sued. The classic example is the case of Summers v. Tice. In Tice, Summers, a hunting guide, took two men hunting. A quail flew above the guide’s head and the two men shot at the quail; hitting the guide in the eye and face. In this situation how is Summers supposed to know who did it? After all, as the plaintiff, he has to prove who did it. Sue them both. The California Supreme Court came up with the doctrine of alternative liability and shifted the burden on the defendants to prove who caused the damage. Sometimes you have to sue everybody, and sort it out later. If Summers had only sued one of the hunters and later found out it wasn’t that hunter, that case would be dismissed.
These harsh consequences of not suing, everyone potentially liable, sooner rather than later, contribute to the overly litigious perception that you can sue a ham sandwich.
While being able to indict the other white meat may be viewed as a negative, quite frankly, some ham sandwiches need to be sued. Starbucks recently decided to sue its meat provider when their ham sandwiches were making people sick. Sometimes suing is about making it painful enough for someone or some corporation to change their dangerous practices through litigation. Preventing harm is one of the most laudable goals a litigator can hope to achieve.
So maybe its a good thing that even ham sandwiches are not immune from justice. Because if an inanimate object can be on the receiving end of a subpoena, then truly nothing is above the law.
This scene from Tommy Boy came to mind recently while I was shopping for car insurance. Periodically, I shop around just to make sure I am not paying too much. 15 minutes or less right? Well, not really. After submitting your information to multiple different companies and looking at your 6 month quotes, you then become inundated with phone calls, emails and even snail mail all trying to get you to switch to a ‘better’ insurance. For me it all comes down to price. I understand what I am paying for and what the insurance company is obligated to do. It’s a contract. I pay x, you will pay y if I am involved in an accident. It should be that simple. But with over 500 billion dollars at stake worldwide, the auto insurance industry is anything but simple.
So one of the selling points of one of the companies I spoke with was that I would be satisfied with my claim. In fact, it was guaranteed. Never mind that they quoted me more than double the 6 month premium of a national auto insurance company. Doesn’t matter that the quote was hundreds more than my current insurance State Farm, which I am more than happy with. (just want to make sure I’m not paying too much) Didn’t I care about my potential claim experience? Didn’t I want a guarantee that I would be happy with it? No. Let me explain.
At that point I was fed up. They called me, asked me all the info they already had (I submitted it online), wanted to know how much I was currently paying, and then kept trying to sell me their services without giving me a quote. They drive a hard selling technique. So, I responded in kind. I told him I knew he didn’t want to waste his or my time. I didn’t care about the fluff or frills of the policy. If they didn’t hold up their end of the bargain, well, I was an attorney and I would sue them. So, just tell me how much it costs. Too much. Now I knew why he was selling the ease of making a claim with them rather than the price point.
But that got me thinking, are people willing to pay more just so they don’t have as much of a hassle when making a claim with their car insurance? Clearly, some people might. Is that a good thing? Not according to research done by insurance companies. What do you mean Mr. FitzPatrick? Well, according to the results of a 1999 study from the Insurance Research Council, on average those represented by an attorney received 3.5 times more in auto accident settlements. Im not the only lawyer who knows this. When do people get an attorney involved? Usually when its a hassle to get a payout. Based on the study, if my claim experience isn’t satisfactory, and I hire a lawyer, it’s more likely that I will get a larger settlement? So, really, shouldn’t I pay less to have a hassle free claims experience? I wish I had thought of that when I was on the phone.
So, I say get the insurance that makes it really difficult for you to have a positive claim experience. Maybe it is a little self interested, because then you will give a lawyer like me a call. But maybe its in your best interest because then you might get an attorney, and, on average, you are then more likely to get a larger settlement.
A common phrase by lawyers promoting their services is that they will “fight for you.” It could be a figure of speech, but in a case from 1992 out of Texas, the lawyers almost came to blows during a deposition. Click the short video to watch it happen.
Maybe that is just how Texans try cases? But there also is some truth in the phrase to ‘fight for your client’. It is an adversarial system after all. And it is not just plaintiff/prosecution vs the defense. Sometimes, you might have to fight the judge too and it might get caught on camera like it did with this public defender in Florida.
Ok, so there are a few exceptions where lawyers and judges get out of control and resort to fisticuffs, but that doesn’t mean all lawyers are brimming with testosterone itching for a fight, right? Right, in fact, studies have shown that lawyers who have higher levels of testosterone (men and women) are, you guessed it, trial lawyers! On a measurable, physiological level, trial lawyers are different.
Now, a correlation doesn’t prove causation. Maybe these individuals already had high testosterone levels and thats why they became trial lawyers. Or, maybe, there is some unknown factor that selects for trial lawyers with high testosterone. The classic example of correlation does not equal causation is the correlation between sexual assault rates and ice cream sales. They both rise at the same time…in the summer. At this point, we can’t say eating ice cream causes sexual assaults just as we can’t say being a trial lawyer causes increased testosterone.
What I can say is that when you are face to face with someone and they are alleging you have done something wrong, or that you didn’t follow the rules, your heart gets pumping. If you don’t have years of practice managing your emotions, you might be inclined to become incensed and lose your composure. But if you can develop your skill for composure and thinking on your feet, you can take the wind out of an opponents sails. Let me offer an example.
A little background, when I was a prosecutor, there was a defense attorney known for coming right up to the line of harassing a witness during their interview statements. (Think of the video at the top) This statement was no different. After about an hour, the witness had enough and left despite defense claiming they did not finish their questions. The defense made a motion to exclude the witness because they couldn’t complete the statement and during the hearing, alleged my witness smelled of marijuana during the witness statement. I can honestly say I did not smell marijuana and relayed that to the court. Defense response was that I either was not familiar with the smell or that I was being disingenuous (lying) to the court. Instead of becoming upset that I was basically called a liar in open court, I reiterated that I didn’t smell anything, but, perhaps, was not as familiar with the smell of marijuana as the defense attorney was. The judge laughed and denied defense’s motion.
Now an attorney needs to know their audience, and this response might not work with the Supreme Court, but then again, you probably wouldn’t be called a liar by a fellow attorney in the Supreme Court unless there was some pretty good evidence for it. In retrospect, that older attorney was probably trying to get a rise out of me, but it backfired. The only way I was able to keep my calm despite the surging testosterone, was because I had felt that surge before in numerous other hearings and learned how to handle it. In this particular situation the best option was not to fight, but deflect.
So do you want a lawyer who fights or who deflects? Both. You want an attorney who can decide when it is time to push and when it is time to step back and let the opposing side whiff. So be careful of those who want to ‘sue the pants off’ someone else. Overzealous litigation can not only be the wrong approach, but also end up running up the legal bills. Then it might be the client who ends up feeling like the one with their pants down.
“My sister had a case where she stubbed her toe and they gave her $50,000”. This statement or something like it perpetuates the idea that obtaining a large amount of money for a relatively minor injury occurs often and easily. The quintessential example of this is the “Hot Coffee” case.
If you haven’t read the case in law school you can read the wikipedia article on the case of Liebeck v. McDonald’s Restaurants. Without all the facts, you might believe the popular myth that you can get a million dollars from spilling coffee on yourself. It’s true, she spilled the coffee on her thigh and inner leg area. It is also true that she was awarded $2.86 million in damages. That’s the extent of what most people can remember about the case.
But what really happened? Stella Liebeck had third degree burns on her legs, lost 20 pounds while in the hospital while undergoing multiple skin grafts, and initially only asked McDonalds for $20,000 to cover her medical costs of about $18,000. McDonalds offered $800. The plaintiff (Ms. Liebeck’s attorney) asked the jurors to award 2 days of coffee sales (in 1994) to Ms. Liebeck for her extensive injuries. $2.7 million.
They did! Case closed! Not really. The Defense appealed the decision and the award was reduced to about half a million. While an appeal of that decision was pending, the case settled for an undisclosed amount. Even if you think your case might be worth ‘big money’ there is always potential a judge can strike it down later on even if you win.
But judges are reasonable, right? They know how much the case is worth, right? Maybe, and most do, but this bit of news should trouble us all. A judge took a bribe to reduce an award in a negligence case. A rare event to see something like this in the news, but still concerning.
So what is the takeaway? There is no slam dunk case and you never know what a jury (or judge) is going to do. What you can do is find an attorney who knows the nuances and facts that lead to substantial awards. An attorney who is up to date on legal issues and trends will be more likely to ignore antiquated notions like the one likely told to plaintiff lawyers in Liebeck’s case that New Mexico courts had never found for a plaintiff in a products liability case. Until they gave out a 2.8 million dollar award.