TheBlueBrothers

If you are harmed by a person, a business, or a government entity, your only legal recourse is through the government. No private person, business, or organization has the capability to obtain justice for you. As you will recall from civics class, there are three branches of government you can go to for assistance: the legislative, executive, and judicial branches. Each of us knows, however, that for all intents and purposes, the legislative and executive branches are virtually closed off to us. Access to these branches requires connections or money most of us do not have. For most of us, our sole remedy for wrongful acts committed against us is whatever we can obtain through the judicial branch of government—i.e., our court systems. Therefore, protecting the integrity and accessibility of that court system is critical.

I just recently watched a fairly phenomenal documentary called Hot Coffee. In addition to affirming my belief that no American of the past 30 years has been as much of a cancer to our society than Karl Rove, the film shows how large corporations have worked tirelessly, and with great success, to limit the ability of individuals to use our 7^th Amendment right to obtain justice via a trial and jury. The film does this in several ways, but I would like to highlight just one of those in today’s piece, and that is the myth of the frivolous lawsuit.

When someone says “frivolous lawsuit,” most everyone’s brain has been trained to think of the McDonald’s coffee case, and how it represents just how out of control our judicial system is and how it rewards those seeking “jackpot justice.” Ironically, however, the McDonald’s coffee case is actually a shining example of just how well our jury system works. I do realize such an assertion flies in the face of what we have been told to think about this case. To most people, the true facts of the case are rather eye opening.

The McDonald’s case was brought by a 79-year old grandmother, Stella Liebeck, whose nephew had just purchased her a cup of coffee. While sitting in the passenger seat of her nephew’s parked car (story usually says she was driving a vehicle at the time of spill), the lid to her coffee came off and coffee spilled into her lap. The result of this spill was burns to six percent of her body including third-degree burns to her inner thighs and vagina. It required multiple surgeries and skin grafts to repair. The documentary includes photographs of the injured areas (if you can stomach a picture of her burns, go here and scroll to the bottom of the screen). Ms. Liebeck’s family contacted McDonald’s to request they pay her $10,000 medical bills and consider storing their coffee at a lower temperature. McDonald’s instead offered Ms. Liebeck just $800. Pushed in a corner, Ms. Liebeck’s family urged her to hire an attorney. At trial, the jury awarded Ms. Liebeck a total of $160,000 for her medical bills and pain and suffering. The jury then awarded Ms. Liebeck an additional $2.9 million dollars in punitive damages (two days of McDonald’s’ profits from coffee), and it was later reduced by the judge to $450,000.

The jury did not award Ms. Liebeck $2.9 million because she deserved it, but because it wanted to punish McDonald’s—which is the precise reason punitive damages even exist. The reasons for the punishment include: (1) McDonald’s was serving its coffee 50-60 degrees higher than what is normally served in a home kitchen; (2) the investigation leading up to trial revealed McDonald’s had received at least 700 complaints from people regarding the unsafe temperatures of its coffee; and (3) many of these prior complaints included people that experienced serious and disfiguring burns, including many children; and (4) despite all of these complaints and serious injuries, McDonald’s took no action to prevent future serious burns and continued storing coffee at higher temperatures to maximize its shelf life. This was the quintessential case of a huge corporation putting profit over human health.

Despite these facts being readily available to all, Ms. Liebeck, who died in 2003, remains the posterchild for frivolous lawsuits. There is even an organization that has created “The Stella Awards” to honor really stupid people doing really stupid things, and then suing someone for it. These “awards” have become email chains you have likely received. These stories, however, rarely include a fair account of the actual facts, and often times make stories up from whole cloth. One of the most indispensable (and independent) websites out there, www.snopes.com, routinely debunks these Stella awards and people’s attempts to mischaracterize real lawsuits.

Perhaps the most famous example of a pro-corporation, anti-consumer leader lying about a lawsuit for political gain was an anecdote told by Ronald Reagan in a speech he gave in 1986, in which he said:

“In California, a man was using a public telephone booth to place a call. An alleged drunk driver careened down the street, lost control of his car and crashed into a phone booth. Now, it’s no surprise that the injured man sued. But you might be startled to hear whom he sued: The telephone company and associated firms!”

Certain facts Mr. Reagan seemed to have forgotten to include: (1) This phone booth was located in a dangerous location; (2) in the previous year, a car had hit the phone booth, completely removing it from its location; (3) after the crash, the phone company put the phone booth in the exact same location without installing any protective devices or warnings; (4) the phone company did not repair the broken door of the booth, and it was this broken door that prevented the injured person from escaping (testimony from the trial revealed that witnesses saw the man struggling unsuccessfully to open the door to escape harm’s way); and (5) one of the man’s legs was amputated and he would no longer be able to be a janitor (his profession at time of injury).

Next time you hear someone complaining of a sue-happy society or litigious Americans unwilling to accept responsibility for their own actions, ask them to put up or shut up. Tell them to point to a single incident of a person bringing a frivolous lawsuit and collecting a dime. If they point to the coffee case or the phone booth case, you are now armed with some facts. If they cannot provide anything else, advise them to limit their bloviations to topics they know something about.

Efforts to convince us that the court system is under attack by a slog of frivolous lawsuits are unfounded. That meme is put out there by corporations to convince us to give away our constitutional right to have our day in court so these corporations can continue to act as bad citizens and dangerous entities without fear of having to pay the consequences of their bad acts.

As a trial attorney (mostly for insurance companies), I have some insight into this. There just are not that many frivolous lawsuits because there are too many factors that make them not worth taking, including: (1) Suing someone is not free. Costs to file a civil complaint can exceed $1,000; (2) It is tough to find an attorney who will take a frivolous case. Besides damaging one’s professional reputation and ability to effectively attract and try legitimate cases, a frivolous case will almost certainly not pay for the time that will go into it; (3) There are very real risks for clients and attorneys who pursue a frivolous claim. If you lose, which you presumably will if the case is truly frivolous, you risk having to pay prevailing party fees and the other side’s costs. You also risk a claim against you for wrongful use of a civil proceeding.

Finally, those that favor taking away our rights to access the court system would have you believe that a jury of our peers cannot be trusted to determine how much you are really owed for your injury. No one has yet been able to explain to me why the average citizen suddenly undergoes a temporary lobotomy once he or she enters a jury box. And if we cannot trust a jury to make that decision, who should we trust? The frighteningly common alternative is an arbitrator selected by the defendant’s insurance company. That’s better than a jury?

For the average person, the judicial branch is the only branch of government he or she can access, while big money has the other two branches at their beck and call. It drives the monied interests crazy that we still have access to one of our three branches of government, and they are doing everything they can to change that. Don’t be an accomplice to this effort. You can start by defending Stella Liebeck.

– Dylan

This entry was posted on September 18, 2012 at 3:47 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.