April 29th, 2021

Stupid Lawyer Tricks – Insurrection Edition

Screen grab from NBC News a moment before Babbitt was shot

Ashli Babbitt was shot dead on January 6th while crashing through the Capitol in an attempt to stop electoral votes from being counted. Now her Estate wants to sue the Capitol Police and the (as yet unnamed) officer for wrongful death.

This is, perhaps, one of the dumber ideas I have heard. Sue the very people charged with defending the republic while you are part of a crowd trying to violently overthrow it? Seriously?

I get phone calls with some frequency about bad cases. I wrote several years ago that the most important word for a personal injury lawyer is “no.” That hasn’t changed.

And bringing a wrongful death suit for the passing of a child — regardless of the context — is fraught with more than the usual emotion. The worst are those that come in the context of suicide, and the question presented is why a doctor did not render the proper treatment in the days/weeks/months before.

And the one thing that must be absolutely, 100% crystal clear is this: The client will never be happy. Never. Ever. It is impossible if a child was lost.

And now we add in a case that can’t possibly be won before a court or jury. Will the lawyers be doing it solely for the publicity? I’ve probably known hundreds of personal injury lawyers here in New York. I can’t think of one that would bring such a suit.

Worse yet for the family is that the Babbit Estate may face a counterclaim for intentional infliction of emotional distress if the officer who shot her has suffered as a result. Few would be surprised if he had post-traumatic stress syndrome.

Such cases are very difficult to win because of the exceptionally high bar that needs to be cleared to get there. But the (New York) rule is that it must be:

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress” (Restatement [Second] of Torts § 46 [1] [1965]).”

In fact, as of 1993, the standard was so high that the Court of Appeals wrote (Howell v. NY Post) “of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous.”

The Court of Appeals in NY wrote that “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Assuming the same standard applies wherever suit ends up being brought, would a violent insurrection satisfy that?

The Capitol Police will never settle. If the suit survives a motion to dismiss or motion for summary judgment because of disputed facts, they will lose at trial.

This can only end badly for the family of Ashli Babbitt. There is no other possible ending.

And the Estate (to the extent it has any assets) could be on the hook for damages to the officer who shot her. Just because a family wants to sue does not mean a lawyer should enable such destructive conduct.

April 22nd, 2021

Stupid Lawyer Tricks – Rape edition

When folks read about frivolous or silly legal claims, they invariably ask: What did that person sue for this time? They never seem to ask, what kind of idiotic defense was raised?

Because idiotic defenses don’t make the papers. Until they do.

This week the NY Post blared an ugly headline about my hometown high school:

New Rochelle High School blamed girl for her own rape, lawyer says

Blame the victim for her own rape? Is that what the high school did? The high school that my kids just graduated from?

Well, no. That’s what the lawyer did, and the school now pays the price. I know this because I pulled the Answer from the electronic file and saw that there was only a lawyer signature on the verification — no one from the school district.

The Post just pulled this nugget from an affirmative defense raised in that Answer to the suit.

Affirmative defenses, for the non-lawyers who have tuned in, usually are these types in a personal injury case (of which this is one):

Failing to start suit in a timely manner (statute of limitations);
Failing to state a claim (fail to make proper allegations that, even if true, would result in the case being tossed out)
Claiming comparative negligence (the plaintiff was partly at fault and any jury award should be reduced by a proportionate amount — think tripping on a busted sidewalk)
Assumption of risk (like getting hit by a foul ball at a game – this was a sporting event, the event was a foreseeable risk and the plaintiff is 100% barred from suit)

There are obviously many more in a laundry list of defenses that lawyers ~~pick and choose~~ cut and paste from given the particulars of a case.

So what did the lawyers claim as affirmative defenses on behalf of the high school? Just that the victim was at fault:

Now that was just dumb. Someone went through the laundry list of potential claims and said the rape victim was at fault for an assault?

And you know this was a mindless cut and paste because “assumption of risk” was also tossed in. But when New York created a comparative negligence statute (CPLR 1411), it wiped out the concept of assumption of risk as an absolute bar to recovery except for the limited cases of sporting events. (See Trupia v. Lake George Central School District). It wouldn’t apply here in any context.

(The actual facts of the incident are unknown to me beyond the Post story, and not for discussion here.)

Now I know what some folks are thinking – what’s the harm of just tossing crap in “just in case”? And the answer is threefold:

First, there’s no actual benefit because pleadings (such as an answer) can be amended, and such amendments shall be freely given. Even up until the time of trial. Even at trial. One of the stock motions at the close of a trial is that “I move to amend the pleadings to conform with the proof.” Sometimes a judge will ask if there is something in particular you have in mind. Sometimes not.

Second, counsel handed the press a headline to the detriment of the client. One thing that must always go through the mind of a lawyer for any public filing: How can the press take this statement and misconstrue it to embarrass my client? And gratuitously blaming someone that says she was raped sure as hell fits that bill.

Third, and possibly the worst. At trial, a savvy plaintiff’s counsel will read the defense and ask the school’s witnesses why they blamed the victim. There is only one answer that can possibly be given: The lawyer did it.

(I did this once when a patient was burned while undergoing surgery: How, dear doctor, was the patient to blame for being burned while she was under anesthesia?)

And when that happens, everything else that lawyer says is looked at sideways by the jury. If the lawyers will blame the victim, why believe anything they say?

This was like kicking the soccer ball into your own goal.

January 7th, 2021

Trump’s Frivolous Lawsuits Were a Good Thing

January 6, 2020. U.S. Capitol Building. Reuters/Mike Theiler

Some thoughts on yesterday’s attempted insurrection at the Capitol, where people tried to stop the process of peacefully transferring power after a lawful election:

Over the course of the last two months, there have been dozens of lawsuits by Trump and Trump supporters trying, in one fashion or another, to reverse the course of the election.

From the outset, many people mocked and ridiculed those suits, principally for the reasons that they were barren of actual facts of widespread fraud, and also because of the people that were sued.

One of the suits was even against Vice President Mike Pence, claiming he had the power to disenfranchise tens of millions of voters and decide the election himself. As if.

Another suit was not against a person, but the Electoral College. Which of course, is not an entity that can be sued any more than you can sue the Fifth Amendment or any other part of the Constitution.

Now normally you might hear me screaming about frivolous suits (and frivolous defenses). Such things make it more difficult for legitimate litigants trying to find redress from wrongs that have caused harm.

When Trump’s frivolous suits started there was an effort by the Lincoln Project to attack the lawyers bringing the suits, in order to shut the lawsuits down:

The Lincoln Project is set to launch a multiplatform campaign hammering Jones Day and other firms for their role in facilitating Trump’s efforts, I’m told. It includes TV and digital ads and social media highlighting the damage that enabling Trump threatens to our democracy and to the success of the presidential transition.

I said back then, on November 11th, that this was a bad idea. Let the suits be brought. Let them be lost. Let Trumpers see every conspiracy theory shot down as meritless after evidence was looked at.

And state after state that was under siege from Trumpers did everything they could to make sure every legal ballot was counted. Just like Trumpers claimed they wanted. Until they decided that wasn’t what they wanted.

Yes, I can hear some of you say, but Trumpers aren’t thinking with their brains but simply screaming from their hearts in cultist fashion. They can never be persuaded. Facts don’t matter.

While that is true for some, it won’t be for all. Over the course of the last two months we’ve seen Trump’s own Department of Homeland Security debunk the idea of mass fraud, as well as his own Department of Justice. There are some people who previously supported him that are now running for the life boats, if they can find any left.

Those lawsuits were a good thing. That they were laughed out of court is a good thing when found to be meritless, and judge after judge said just that. Some lawyers may, perhaps, even be sanctioned. Again, that would be a good thing if they acted in bad faith in bringing the suits when they surely knew better.

The winner in this election was the evidence. It was run through the legal system and the evidence prevailed. And it wouldn’t have happened that way without the lawsuits.

August 25th, 2016

Starbucks Iced Coffee Suit is (Shocker!) Dismissed

Bad lawsuits would be a bee in my bonnet, if I wore bonnets. And that is because bad lawsuits injure good lawsuits.

The bone-headed suit makes news because it is an outlier, but then because it is in the news, helps to form negative opinions about lawyers and lawsuits that negatively effect the perfectly reasonable legal action by tainting the jury pool.

And that was my opinion back in May when suit was brought against Starbucks because there was too much ice in the iced coffee, thereby (so the claim went) leaving the consumer with less coffee than he paid for.

My response at the time was a parody post, wherein Dunkin’ Donuts was sued for not enough jelly in its jelly donuts, and it contained one of my favorite paragraphs:

The class action lawsuit in New York’s Supreme Court accuses the doughnut maker of false advertising, fraud, and unjust enrichment. It calls Dunkin’s jelly doughnuts “defective and deficient due to their skimpy, scanty, paltry, pitiful, meager and otherwise insufficient quantities of jelly within each said doughnut unit.”

In my follow-up post, I’d written how easy it is to “have it your way” and simply ask for less ice.

And now, as expected, the iced coffee lawsuit has been tossed out. (Decision – Forouzesh v. Starbucks) For the same reason that I wrote. And for that matter, the same reason that countless others no doubt had written. Even a child knows you can ask for less ice:

But as young children learn, they can increase the amount of beverage they receive if they order “no ice.” If children have figured out that including ice in a cold beverage decreases the amount of liquid they will receive, the Court has no difficulty concluding that a reasonable consumer would not be deceived into thinking that when they order an iced tea, that the drink they receive will include both ice and tea and that for a given size cup, some portion of the drink will be ice rather than whatever liquid beverage the consumer ordered.

This conclusion is supported by the fact that the cups Starbucks uses for its Cold Drinks, as shown in the Complaint, are clear, and therefore make it easy to see that the drink consists of a combination of liquid and ice.

As I (and countless others) had indicated, an iced drink contains ice as an obvious ingredient. The court (shocker!) concurs on the obviousness of it all:

When a reasonable consumer walks into a Starbucks and orders a Grande iced tea, that consumer knows the size of the cup that drink will be served in and that a portion of the drink will consist of ice.

Case dismissed.

The problem with bad suits is that they form public opinion based on anecdotes, not empirical evidence. Empirical evidence can be boring. But an idiotic suit — even if it is one in ten thousand — sells papers.

Updated with posts from elsewhere:

No, You Can’t Sue Starbucks For Putting Too Much Ice In Your Drink, Judge Rules (LAist, including interview with the litigant.)

Class action: too much ice in Starbucks iced drinks (Overlawyered, earlier)

May 5th, 2016

The Great Jelly Donut Parody (Hey, why’d you do dat?)

Yesterday I ran a parody, wherein Dunkin’ Donuts was sued for not putting enough jelly in its jelly donuts. I didn’t do it just for the hell of it. There is (usually) a method to my madness.

Specifically, Dunkin’ was “sued” because their jelly doughnuts were “defective and deficient due to their skimpy, scanty, paltry, pitiful, meager and otherwise insufficient quantities of jelly within each said doughnut unit.”

My posting was spurred on, as noted in the post, by a suit out in Chicago where Starbucks was sued for putting too much ice in an iced coffee. My point was to mock that idiotic suit.

Now why would a guy that does personal injury law mock the work of another, who purports to represent consumers? Don’t lawyers on the same side of the “v” protect each other like cops and doctors do?

But regular readers know that I call ’em as I see ’em, and what I see is that bad lawsuits damage those with good lawsuits. It’s the headlines from poorly considered, outlier lawsuits that make the headlines and then go on to infect the jury pool by making people more cynical. When jury selection starts, the scales of justice are already tipped in favor of the defendants due to those “damn lawyers” and this makes it more difficult for others in the courthouse to prevail.

Let me be clear: Your bad lawsuit hurts my clients.

So why does the Starbucks suit suck the big wazoo (a legal term of art for you newbies to this site)? Well first off, ice is actually an ingredient in an iced drink. Take out the ice and you have a different drink.

A Starbucks spokesman said:

“Our customers understand and expect that ice is an essential component of any ‘iced’ beverage. If a customer is not satisfied with their beverage preparation, we will gladly remake it.”

So the issue isn’t really that there’s ice in the drink because there’s supposed to be ice in the drink, but rather, how much ice is in there. In other words, it’s an issue of judgment as to how much the customer will like. Different strokes for different folks and all that.

Which leads us to the second issue: Americans are accustomed to having it like we want it when ordering food and drink:

Too much ice? Less ice, please.

Don’t like potatoes with the chicken? Can I substitute rice?

Hold the mayo on that sandwich please.

I’d like the dressing on the side, please.

I’d like extra dressing, please.

Restaurant customers are accustomed to ordering things that are vegan, vegetarian, nut-free, gluten-free, egg-free, lactose-free, shellfish-free, hold the onions, or I’d like my sushi cooked well done.

Burger King has, for decades, had Have it your Way as it’s advertising campaign. In Harry met Sally, it was a running joke when Meg Ryan special ordered everything in a restaurant.

Here’s the thing about Starbucks: It was born and raised in a capitalist society. They offer a premium product and therefore it must cater to the whims of its clientele. This is not a discount chain cutting staff to the bone to save a few bucks.

If Starbucks drops the ball on customer service — and that means giving people what they want at the counter — then they have lost a customer. Less ice isn’t exactly a tall order, nor even a Grande or Venti one. Can anyone imagine the diner that Jack Nicholson visited in Five Easy Pieces, where he tried to get a side order of toast actually surviving as a business?

Since solving this “problem” was not difficult — it would be difficult to find an easier problem to solve since it isn’t actually a problem — the suit is destined for the trash heap of history. Ice is part of the drink, and if there is too much for your liking they will make it the way you like.

So here is my message to my brethren of the bar (in this case, Hart McLaughlin & Eldridge in Chicago) who bring crappy suits and stir headline writers to spew about lawyers which in turn piss of the populace about lawyers and lawsuits: Your suit is manna from heaven for tort “reformers” and insurance companies. They get to “promote” your outlier lawsuit and portray it as typical, and thereby poison the jury pool.

Stop hurting the people I represent.

Addendum, see also: Starbucks Iced Coffee Lawsuit – A Rebuttal