Frivolous?

I read a recent criticism of the McDonald's coffee verdict. This seems very timely, considering the incident happened in 1992, and the trial in 1994. I would be interested to hear the author's view on The Arsenio Hall Show and Beverly Hills 90210 as well.

But my real concern is the lack of any knowledge as to why this suit happened. I am not claiming that it was the greatest lawsuit ever, but it was over a lot more than "hot coffee."

Stella Liebeck was 79 years old on February 27, 1992. She was riding as a passenger, with her grandson. He pulled the car from the drive-thru window and stopped so she could add cream and sugar. She tried to open the lid, and the coffee spilled.

The coffee was approximately 190 degrees, or 22 degrees from being boiling water. It was kept that hot so that it would taste good. By comparison, coffee at home is often SIXTY DEGREES COOLER. At that temperature, she was burned within two to seven seconds, and the cotton sweatpants she wore held the water close to her body.

Stella suffered third-degree burns over six percent of her body, including her inner thighs, and burns of some kind over an additional sixteen percent of her body. She required skin grafts, and spent eight days in the hospital, and was in physical therapy for two years.

Stella asked for $20,000 to settle this case, which essentially covered her medical bills and attorney's fees. McDonald's refused.

During trial, McDonald's claimed that people buy their coffee not intending to drink it in the car, but to take it to work or home, thus allowing it time to cool. We all know that's a bald-faced lie, but what were they going to say? We choose to serve our coffee so hot it can cause a third-degree burn within less than five seconds? The trial brought to light that there had been more than 700 complaints and serious burns over the previous ten years.

By contrast, an expert testified that if the coffee had been served at 155 degrees, it would have cooled before causing serious burns.

The jury found compensatory damages to Stella at $200,000, then reduced the amount by twenty percent because it found her to be twenty percent at fault. The jury then found $2.7 million against McDonald's for punitive damages. The judge reduced that amount to $480,000 within days of the trial. The $2.7 million? The jury calculated that was two days of coffee sales for McDonald's.

Now, I don't know how the author feels about third-degree burns to grandmas, but I'm on record as being against them. I'm not saying that this case was Brown v. the Board of Education, but it was a serious case against a company that really didn't care.

In addition, the lawsuit caused the industry to make other changes:

- Safer coffee lid and cup designs that make it far harder to spill an entire cup of coffee.
- Cups made out of more thermal materials. While Styrofoam and thermal foam keeps the coffee inside hotter for longer, it also insulates your fingers from the hot liquid inside.
- Cup sleeves as common practice.
- A new policy that holds true at nearly all fast food drive thrus – the server must cream and sugar your coffee if you request it. In fact, most restaurants no longer serve takeout coffee black with cream and sugar on the side.

But the fact that the author had to go back fifteen years to find something to complain about goes to show that our system really isn't that bad. Judges throw out meritless cases every day.

How about no more frivolous columns about lawsuits?

Facebook Justice

It's hard to imagine a world without social networking sites like MySpace and Facebook. Even though most people hadn't heard of the concept three years ago, now everyone, it seems keeps track of family, babies and their social events by means of sites like these. I know that I love Facebook for the sheer number of people I have reconnected with who had been out of my life for more than a decade.

But you may have also heard that the sites are putting a strain on the justice system. Between informational sites like Google and micro-blogging sites like Twitter, along with the social networks, there is so much information on the web that jurors are understandably tempted to look for their own information instead of keeping their knowledge to their case independently.

This is troubling, because the entire idea of the trial is to allow the judge to keep out the things that really don't matter. Does it matter that a man had a DUI 20 years ago if he's involved in a contract dispute now? Really, it doesn't, but it might to a member of Mothers Against Drunk Drivers. Similarly, a religious blog might turn off jurors, even if the content had nothing to do with their present case.

The "common law" as it exists about trials and trial procedures has literally taken four centuries to develop. Granted, it has changed significantly during that time, but I doubt at any time that the legal community will endorse jurors as detectives. We need their consensus, not their deductive skills.

So don't be offended if a judge tells you to cool your heels during a trial. This is quite reasonable, at least until they come up with a legal site halfway as good as Google or Facebook.

Facebook Justice

It's hard to imagine a world without social networking sites like MySpace and Facebook. Even though most people hadn't heard of the concept three years ago, now everyone, it seems keeps track of family, babies and their social events by means of sites like these. I know that I love Facebook for the sheer number of people I have reconnected with who had been out of my life for more than a decade.

But you may have also heard that the sites are putting a strain on the justice system. Between informational sites like Google and micro-blogging sites like Twitter, along with the social networks, there is so much information on the web that jurors are understandably tempted to look for their own information instead of keeping their knowledge to their case independently.

This is troubling, because the entire idea of the trial is to allow the judge to keep out the things that really don't matter. Does it matter that a man had a DUI 20 years ago if he's involved in a contract dispute now? Really, it doesn't, but it might to a member of Mothers Against Drunk Drivers. Similarly, a religious blog might turn off jurors, even if the content had nothing to do with their present case.

The "common law" as it exists about trials and trial procedures has literally taken four centuries to develop. Granted, it has changed significantly during that time, but I doubt at any time that the legal community will endorse jurors as detectives. We need their consensus, not their deductive skills.

So don't be offended if a judge tells you to cool your heels during a trial. This is quite reasonable, at least until they come up with a legal site halfway as good as Google or Facebook.

Green Day

Watching video and seeing the pictures of all the brave Iranians wearing green - no small feat - reminds me of how important our legal system is, and despite all of its flaws, how it is clearly the greatest legal system in the world.

And while we can pat ourselves on the back for being great, we should also honor the commitment being made by people who want a greater say in their government. So here are some things that you can do to help:

1. If you are technologically savvy, set up a proxy server to allow the Iranians access to the internet.
2. If this is too hard, you can try a Tor relay.
3. If you use Twitter, set your location to Tehran & your time zone to GMT +3.30. Iranian security forces are hunting for bloggers using location/timezone searches. The more people at this location, the more of a logjam it creates for forces trying to shut down Iranians' access to the internet.
4. Keep track of events on message boards like Anonymous Iran.
5. Forward this blog entry to others and ask them to do the same. http://bit.ly/3TfLEN

Remember the Public Enemy song "Countdown to Armageddon," with the line, "This time, the revolution will not be televised"? Sorry Chuck D. Not so. This is one of the first democratic uprisings that you can participate in from half way around the world. If that doesn't get you ready for the Fourth of July, I don't know what will.

The Myth of the Lawsuit

I realize that there are plenty lawyers out there doing their best every day to give our profession a bad name, but in general, I believe that the only thing that stops more lawsuits from being filed are the lawyers themselves.  

When clients come to see lawyers, they are not there because they are happy and content and cuddly.  We get to see people at their worst, when they are scared and injured and angry, and we get to be -- get this -- the voice of reason.

Everyone comes into their lawyer and says the same thing:  It's not about the money, it's about principle.

Which is crap.

It's about the money.  That's the one thing lawsuits can do.  They can transfer money from the person who hurt you into your pocket.  They can do a few other things as well, but chances are, if you're in a lawyer's office, you are or should be wanting the money.

But lots of times, there's no money to be had.  We don't believe we can prove negligence.  Maybe the damages aren't large enough to pursue.  Or maybe they're plenty large, but it's obvious that the other side doesn't have any money.  

Believe it or not, I probably turn down ten lawsuits for any one that I file.  In cases of medical malpractice, it's probably 100 to 1.  Every one of those other clients are loaded for bear, but in the end, they're just going to be frustrated because the initial rush of sticking a lawsuit under someone's nose doesn't last long.  It just gets expensive.  And, quite frankly, many times, you just need to move on.

I don't say this to scare anyone away from talking to a lawyer; quite the contrary. If you avoid the back page of the phone book, you'll generally get an honest answer on whether to proceed or not. But don't expect a rubber stamp; we may protect you from your own injured instincts.  And that's not a bad thing.

At It Again

This week, we heard that the nation's doctors, in the midst of our country's economic strife, are once again sad because they get sued just like anyone else when they do something wrong. They booed when President Obama didn't give them everything they wanted, most notably a national cap on damages, so that people can only recover SOME of their damages when they are injured by a negligent or reckless doctor.

I could write for days about this topic, about how completely ridiculous it is for doctors to even ASK for this, but I'm going to try to make it short, sweet and memorable:

1. It is already harder to sue a doctor than ANYONE ELSE. Many cases that should be brought won't be because it's not economically feasible.

2. Doctors have the right to not settle cases. This is different than with your automobile policy or other types of insurance. So they can convince themselves that they're right, and make legitimate lawsuits cost more than they should for both sides.

3. Most states already have caps on non-economic damages. The doctors just want more.

4. About 5% of doctors cause almost half of malpractice claims. Why? Because the doctors are so worried about anyone telling them what to do that they refuse to adequately police themselves. Until they do so, someone else has to do it, and it gets to be the lawyers.

Contrary to popular belief, no one enjoys suing doctors. To the contrary, it would be nice if they would worry more about practicing medicine and less about practicing law. But they don't need any more help. They already have enough of that.

Tragedy in Trial

I've been in my share of high-pressure jury trials, including two murder trials, and several trials involving sexual offenses.  It is a real burden to carry the weight of someone's life and freedom with you for days, months, even years.

So my heart goes out to everyone involved in the Adella Faye Patton murder trial.  My friend John Lewright, a very good trial attorney, defended her as she stood accused of murdering her boyfriend, Kevin Madison.  She was found guilty of second degree murder, then apparently took her own life before she could be sentenced.

So many things are lost in this type of situation.  Obviously, a family has grieved for Madison for years.  A family supported Patton, then lost her as well.  The couple had a mercurial relationship, and the only real question during the trial was whether Patton was justified in using deadly force as self-defense.

But there are many more casualties in this case.  Judges, prosecutors, defense attorneys, detectives:  they are all questioning themselves today, all wondering what they could have seen, how one more layer of tragedy might have been avoided.

No one feels good about this tonight. There is no panacea.  Losing a jury trial is hard enough; losing the client as well must feel like hell.

Missouri DWI - St. Louis, Kansas City, Springfield

Here's a little video to help you understand what happens when you get a DWI. If you get a Missouri DWI, whether in St. Louis, Kansas City, Springfield, Joplin or Columbia, let me know. I would love to talk to you.

My phone number is (417) 723-0051.

Rethinking Justice

Courts, like almost all areas of our society, are feeling the sturm und drang of this dead-fish economy. Crime is up, money is down, and the strain can be seen everywhere.

Maybe that's not all bad.

Courts have long been burdened with cases that they don't need to handle. Over-harsh drug laws and driving restrictions have created major distractions that the courts can no longer afford to handle.

Here are my thoughts on how to handle it:

1. Decriminalize first-time marijuana use. This writer would like to see marijuana legalized, but that's for another day. Decriminalizing first-time use is truly a practical consideration.

First-time marijuana use would come with a mandatory $500 fine and two-hour anti-drug seminar. This fine would be assessed in all cases, and, at the judge's discretion, could be paid over time. The first possession would not be a criminal offense, but would carry a finding that would make a second possession charge a misdemeanor.

This would take small-amount marijuana charges from a money-taker to a money-maker. Courts would unclog. It would give casual users a literal "get out of jail free" card, and allow those who make a single mistake to avoid being saddled with a criminal record.

2. Make marijuana cultivation and transportation into Class D Felonies. As you read this, an old hippie with a pot plant on his front porch has just been arrested somewhere. He had some good weed, man, that he wanted to grow before putting on that Dead show from Madison Square Garden in 89. He's never sold to anyone else, dude, and that's the truth.

Know what he gets charged with? The exact same crime as the toothless scumbag operating a meth lab with kids in the house; Manufacturing controlled substances. That's right: Growing a pot plant is "manufacturing" in Missouri. This is punishable by 5-15 years in prison.

Same thing is true for some poor mule carrying marijuana up I-44. If he's caught, there is no differentiation between marijuana and heroin or coke; they're all Class A felonies, and face the possibility of Life in Prison.

That's ludicrous.

If we continue to criminalize marijuana, the least we can do is differentiate between it and other drugs. How can you charge someone growing a pot plant for personal use with the same crime as a true drug dealer?

Again, this would have the effect of taking people out of prison, keeping people in prison for shorter amounts of time (a huge financial savings) and do the job our legal system is charged with: using our system of justice to keep us safe.

Even the Missouri Sentencing Advisory Committee, not exactly a bunch of potheads, indicate the benefits of community-based programs and drug courts instead of prison. That's great, when there's money to pay for it.

We are having to prioritize in every other area of our lives. We are buying smaller, less expensive cars; we are going out less. The same needs to be true for our criminal system. It is bloated, in need of care. We need to prioritize what really needs to be severely penalized.

Know how prison planners estimate an area's future prison needs? They use the percentage of current-day third graders who are behind in school. What if we could quit filling our prisons with people who could contribute to society and instead concentrate on keeping children from getting behind? What if we could even start with simply balancing the books? We're having to make changes everywhere; the justice system needs one too.

Law In Trying Times

I posted a new piece on MissouriLawyers.com. Check it out:


http://missourilawyers.com/blog/1002/law-in-trying-times