Is This the Way Insurance Works?

Blaming the Trial Lawyers

This  syndicated "Mallard Fillmore" cartoon ran in newspapers nationally. The incident referred to is one where an employee of SuperAmerica convenience stores in Minnesota grabbed a robber whom the employee believed was attacking the cashier. SA fired him because his actions in fighting off the robber violated SA's policies. These situations do arise from time to time and they are difficult for students to understand. Under the "at-will-employment doctrine," employers may fire employees for cause, or for no reason at all, or even for a reason that most people would consider to be a bad reason. Many states have carved out narrow "public policy" exceptions to this rule to protect employees who are engaging in conduct that should be encouraged, rather than discouraged, by society.

I don't have any idea where this employee's claim will end up under Minnesota state law. However, one thing is clear. In order to get the justice that this employee deserves, he will need to get the assistance of a trial lawyer. The cartoon above erroneously attributes the effects of the at-will-employment doctrine to the work of trial lawyers. In fact, trial lawyers would be the ones representing fired employees who are making claims of wrongful discharge against employers who fire them for bad reasons. The effects of the at-will-employment doctrine are the result of corporate lawyers representing large corporations and wealthy employers who prefer to be free from any obligations to employees. At-will-employment promotes reliance on free-market forces in the labor market - forces which result in periodic injustices. It is the trial lawyers who seek justice for the fired employees. This cartoon suffers from a common disability: the "knee-jerk reactionary, blame the trial lawyers for everything" syndrome. I guess it is an example of just one more "error of law" about which students will have to be educated.

Victim of Racial Discrimination? You Take 'Em to . . . Arbitration?

The old People's Court with Judge Wapner featured commentator Doug Llewelyn coining a phrase that became iconic in American legal culture:  "If you're involved in a dispute such as this with another party and you just can't seem to work it out, don't take the law into your own hands - you take 'em to court."

See video below at :30:



When an African-American man sued Airbnb over racial discrimination, he discovered that he can't "take 'em to court."  His Airbnb account contract included an enforceable mandatory arbitration clause.  So instead of presenting his evidence to an impartial, competent judge or jury, he will have the opportunity to present his case to non-judicial decision-maker who makes a living out of deciding cases for Airbnb and similar parties.  Could such a decision-maker likely have some innate partiality toward a business or industry that provides his/her livelihood?

What do you think?

Thought Provoking Law Quote: Alan Dershowitz

It has often been said that a trial is a search for truth. However, is there only one truth in a complex dispute? In 1995, former NFL star O.J. Simpson went on trial for the murder of his ex-wife and her friend. The criminal trial was broadcast on TV from the courtroom and captivated the nation’s interest. The “search for truth” was placed front and center in the American conscience. Harvard law professor Alan Dershowitz describes the scene in his article, Is a Criminal Trial a Search For Truth?:

A review of the trial transcript reveals that this phrase was used more than seventy times. The prosecutors claimed that they were searching for truth and that the defense was deliberately obscuring it. . . . The defense also claimed the mantle of truth and accused the prosecution of placing barriers in its path. And throughout the trial, the pundits observed that neither side was really interested in truth, only in winning. They were right – and wrong.

Simpson was acquitted of the criminal charges against him by the jury. The victims’ families also filed a civil lawsuit against Simpson for wrongful death of their loved ones. In the civil trial that took place immediately following the criminal trial, the jury found Simpson liable for the deaths. One incident, two trials, and two different “truths.”

Thought Provoking Law Quote: Peter Thiel

Peter Thiel, the billionaire founder of Pay Pal who famously financed Hulk Hogan's invasion of privacy lawsuit against the sleazy Gawker website that resulted in a $130 M verdict, recently explained his support for Donald Trump by detailing the great economic inequities constituting our national crisis:

“If you’re a single-digit millionaire like Hulk Hogan, you have no effective access to our legal system.” 

- Peter Thiel addressing the National Press Club 10/31/16

How many times have we told our students that the civil justice system was the great social leveler?  Any "regular Joe" could find justice against powerful wrongdoers simply by accessing the court system.  Right? Is this still true, or has it become one of those quaint civics class myths like "the law is insulated from the influence of politics."

See the video here.

Fearing Legal Liability, Budweiser Does the Right Thing.

A recent Bud Light advertising campaign was scuttled over concerns of exposure to legal liability, but not before the bottles with a thoughtless slogan had been distributed. The Bud Light labels prominently identified the product as "THE PERFECT BEER FOR REMOVING "NO" FROM YOUR VOCABULARY FOR THE NIGHT." Fearing legal liability for promoting rape culture, the company has pulled the bottles and the slogan and has apologized.

Corporate decision-making can be siloed and fractured, but how many drunken frat boys must there be at this company to approve such an exquisitely callous and inappropriate public presentation of a product?  When students complain to me that businesses worry about getting sued my response is, "They are supposed to worry about getting sued."  Fear of being sued is what causes them to be more careful about safety and thoughtful about how their practices can negatively impact the rest of society.

At least once the online comments started to flow, the company responded appropriately instead of trying to stubbornly defend the indefensible. But what kind of "College Humor"-fueled, insular and thoughtless culture must permeate the social media marketing office at Bud that they were unable to comprehend the implications of adopting this slogan? Even if they were unable to recognize their callous disregard for the victims of sexual assault, they should have been able to recognize the obvious liability exposure.  I would hope that any 5th or 6th semester Legal Environment student would have caught that one.

It is Dangerous to Ignore Legal Papers

The video below documents a story illustrating why it is important to pay attention to legal papers.  A family sued over a neighbor's alleged emotional distress caused by the family's barking dog thought it was a joke and ignored the summons.  Now, with a default judgment against them, they are facing losing their home.

Students should understand the power of the law and its process.

Sorting Out Jury Verdicts

Students are used to popular cultural representations of jury verdicts as "simple" pronouncements of guilt of innocence.  However, as factfinders, the jury's duty in a civil case can be quite complex.

A jury in California recently ruled against Ellen Pao in her highly publicized sex discrimination lawsuit against Kleiner Perkins,a powerful silicon valley venture capital firm. The case is certainly interesting as a teaching tool on a number of fronts.  But I am particularly interested in bringing to you a link to the jury verdict form from the case, courtesy of the New York Times.  Students viewing the verdict form sent into the deliberation room will be surprised to learn that it contains 7 pages of detailed questions for the jury to answer.  The jury answers the fact-specific questions and, from their answers, the court (judge) fashions the judgment. There are also 14 pages of written instructions. Release of the verdict form sheds light on a part of trial procedure about which our students are mostly in the dark

It's not exactly as simple as "We find for the defendant."

News report on Pao verdict:

Contempt of Court

Students who watch the movie, My Cousin Vinny, are sometimes surprised by the contempt rulings against Vinny for failing to comply with courtroom decorum and question whether that is merely a fictional device to garner laughs.  Well, here is Judge Joe Brown, formerly of TV curt show fame, found in contempt of court and sent to jail as a result of his courtroom conduct. It happens.

Raw audio:

Pay The Piper, or He Sings

From the fable of A-Rod and the MLB:

If you into a serious legal dispute, you need a lawyer.  If you need a  lawyer, then you need to pay a lawyer's fee.  If you don't pay the fee, then you get into a legal dispute with the lawyer who helped you with your legal dispute.  If you get into a legal dispute with the lawyer who helped you with your legal dispute, then your lawyer will disclose all the secrets that he hid for you in order to prove that you needed a lawyer's help with your legal dispute. To try to safeguard those secrets, you will need a lawyer to help you with the legal dispute with the lawyer who helped you with your legal dispute. And the carousel spins round and round again, etc.

Quick Settlement; When and Why?

One of the themes we flesh out in our Legal Environment class is the characteristic of litigation as a "War of Attrition."  The quote comes from one of the lessons in The Moral Compass of the American Lawyer: Truth, Justice, Power, and Greed by Richard Zitrin and Carol Langford. I also like the image as it helps to bust the myth of the quick settlement.  The myth of the quick settlement is the second half of the myth of the frivolous lawsuit. The legend goes something like this:  In America, people regularly file frivolous lawsuits and businesses quickly pay off the plaintiffs with a lucrative settlement to avoid bad publicity.  The legend/myth/folklore makes no sense on so many levels. But here, I just focus on the quick settlement part.

Why would any business or insurance company pay a plaintiff who files a frivolous lawsuit and earn a reputation as a source of easy money? Why would businesses fear embarrassment from frivolous lawsuits that, by definition, have no merit and probably make the plaintiffs look stupid? Why would businesses worry about the costs of defending a lawsuit that is likely to be dismissed immediately upon filing of a motion? Doesn't it make more sense for a business/insurance company to vigorously defend a frivolous case?

So, when would we expect a quick settlement of a lawsuit?  How about when there is an absolutely bona fide case that has the capacity to embarrass a company to such a degree as to affect revenue?  Up until discovering the article below, the example that I used to use was the sexual harassment lawsuit filed against Fox News and Bill O'Reilly by one of O'Reilly's young female producers.

The Smoking Gun website has posted the complaint which is too sexually explicit to show in class, but which seems to include allegations just a bit too specific and unusual to be made up. O'Reilly and Fox initially denounced the suit as an extortion attempt and filed their own complaint against the plaintiff.  Yet, surprisingly, the case was settled in two weeks. Why? Apparently, the plaintiff had most of the alleged harassing comments recorded on her phone answering machine. So, far from being a frivolous lawsuit, it was a bona fide lawsuit with the unquestioned ability to cause significant damage to Fox and their standard-bearer, O'Reilly.

However, now there is new example that may be more appropriate for full disclosure in class.  Following the unfortunate death of Philip Seymour Hoffman, The National Enquirer published an article purportedly quoting David Bar Katz, Mr. Hoffman’s friend, as saying that he and Hoffman were lovers who free based cocaine the night before Hoffman’s death.  The problem, of course, was that the factual statements were completely false and the Enquirer apparently made no effort to determine if the person whom they quoted was actually David Bar Katz.

The ensuing lawsuit was settled within a few weeks with the creation of a foundation that will award an annual playwriting prize. Was the lawsuit settled so quickly because it was frivolous or because it was absolutely bona fide?

Snarky Facebook Gloat Costs Papa Cash

Yesterday's post was about an arrogant snarky franchise manager taking advantage of an employee and getting whacked for a big settlement.  Today's is about the arrogant snarky daughter of a successful plaintiff who likely cost her dad his compensation in an age discrimination claim by posting about it on facebook - proving her dad had violated the confidentiality agreement.

According to the report in the Miami Herald, a 69 year old headmaster at a private preparatory school was denied contract renewal and sued claiming age discrimination.  The case eventually settled with the plaintiff receiving approximately $90,000 and with a confidentiality clause.  However, the plaintiff's college aged daughter posted the following on her facebook page:

“Mama and Papa Snay won the case against [the prep school],” Dana Snay posted days later to her 1,200 Facebook friends. “[The school] is now officially paying for my vacation to Europe this summer. SUCK IT.”

When her former prep-mates/facebook friends saw it, word got back to the school. The Florida Appellate Court has set aside the settlement.

According to Yahoo Shine, this is an image from the daughter's facebook page:

Read more here: http://www.miamiherald.com/2014/02/26/3961605/daughters-facebook-boast-costs.html#storylink=cpyfacebook page:

Spotlight on Frivolous Lawsuits

I have previously expressed the opinion in this blog that frivolous lawsuits are good for America. Others may have different opinions. In recognizing that frivolous lawsuits exist, I am by no means buying into the industry-fueled tort reform propaganda that the nation is somehow awash with frivolous lawsuits that cost taxpayers billions of dollars. But, I am recognizing reality.  These lawsuits exist.  They are usually filed pro se.  They are usually filed by people with apparent mental illness. They are summarily dismissed from the court system at the earliest possible review by a judge. Yet, the media reports on these lawsuits as if they were representative of the state of the civil justice system and attract the attention of judicial resources in the same degree as legitimate claims. Certainly the media can claim to be "just reporting the facts." But misrepresentation by omission is just as harmful to legal legitimacy as intentional falsehoods. The experience of the reporting on the McDonald's Coffee Case should have taught us something as a society. It takes an educated and  knowledgeable reader to draw the proper conclusions from the facts reported.

UConn is promoting "Business Literacy" as a point of emphasis in our courses.  I think one of the principal contributions that a Legal Environment course can make toward that end is to produce students who can read through sensational reporting of civil justice issues to discover the real impact of what is reported.

See similar posts, here and here.

So, that brings us to the frivolous lawsuit du jour.  The Oregonian reports:

A 26-year-old Portland pimp has filed a $100 million lawsuit against Nike, claiming the shoe manufacturer is partially responsible for a brutal beating that helped net him a 100-year prison sentence.

Sirgiorgiro Clardy claims Nike should have placed a label in his Jordan shoes warning consumers that they could be used as a dangerous weapon. He was wearing a pair when he repeatedly stomped the face of a john who was trying to leave a Portland hotel without paying Clardy's prostitute in June 2012.

Pro Se?

In his three-page complaint handwritten from the Eastern Oregon Correctional Institution in Pendleton, Clardy claims that Nike, Chairman Phil Knight and other executives failed to warn consumers that the shoes could be used as a weapon to cause serious injury or death.

Mental Illness?

A psychologist declared him an anti-social psychopath who was 100 percent likely to commit violent crimes again. And Clardy disagreed so loudly -- making such a scene -- that he was removed from the courtroom.

Costing taxpayers millions of dollars?

In the coming days, the suit will be served to Nike, which will then have an opportunity to respond.

In this case, all the facts are there.  But our students need to able to understand the legal and social implications of the facts.

On the other hand, the 1:30 second news report below from Bloomberg 8 fails to include the "pro se" fact or the likely mental illness. It also mis-characterizes the civil suit as a defense in his criminal case.

Giving New Meaning to "Bank Foreclosure"

Bank of America attempted to foreclose on a house on which it had no mortgage. The homeowners countersued and the bank was ordered to pay the homeowner's legal fees. After waiting months for payment, the homeowner's lawyer sent the deputy sheriffs to the local Bank of America branch to execute the judgment.  They arrived with moving vans prepared to haul out the office furniture if necessary. After some initial panic, the bank manager was able to cut a check.  The bank's excuse?  They didn't know that their lawyer had gone out of business!

Yeah, and the dog ate your mortgage note.

Video news report:

No One Likes to Get Served With Legal Papers

No one likes to get served with legal papers. I don't think process servers get enough credit and have raised these issue in the past:  here, here and here.

Consider the article that runs under this headline: "Police" Sword Wielding Man Chased State Marshal"

Process servers face assaults, hostile law enforcement officers, lax regulation . . . etc.   Watch:

File Sharing Judgment of $675,000 Upheld

A Federal Appeals Court has upheld the $675,000 verdict in favor of the RIAA against former Boston University graduate student Joel Tenenbaum.  As originally reported in this blog, Tenenbaum had been sued for sharing songs that had copyright protection.  His plight attracted the services of famed Harvard professor Charles Nesson of "A Civil Action" fame.

This was not a case of a naive college students failing to understand the law and its ramifications. The court called Tenenbaum's conduct "egregious" in that he shared the files intentionally knowing that doing so was a copyright violation and continued to do so after several warnings from the RIAA.

The case explained:

Justice Delayed is Justice Gone Wild!

I have previously written about a common misconception held by students that civil litigation is relatively painless and quick. Of course, popular culture helps foster this misconception with TV shows and movies that cover the time period from the precipitating incident to the resolution in the court system in a neat , tidy package of time and effortless proceedings. The worst offender may be the movie North Country. The movie purports to be "inspired by" Lois Jensons's landmark sexual harassment suit against Eveleth Mines in Minnesota. In the real case, Jensons's legal odyssey from first harassment to final settlement traverses a tortuous path over 24 years, prompting the Court of Appeals to make this extraordinary statement:

If our goal is to persuade the American people to utilize our courts as little as possible, we have furthered that objective in this case. If justice be our quest, citizens must receive better treatment. The judiciary must somehow afford more efficacious monitoring of delayed cases. We must achieve this goal through action, not just by words.

In the movie, the whole scenario from incident to conclusion occurs over less than a year (none of her children age at all during the movie). And her greatest challenge is to answer some mildly uncomfortable questions at trial.

That is why I think it is important to make students aware of cases such as this one recently reported.

Lindsey Bullard was a 14-year-old Powder Springs, (Ga) middle-schooler when she was stopped by a man holding a video camera as she walked down the strip in Panama City, Fla., on spring break in 2000. When the man asked her to step into a nearby parking lot and expose her breasts, Bullard complied and was given a beaded necklace in return.

The cameraman later sold the video for “Girls Gone Wild, College Girls Exposed” and a photo of Bullard exposing her breasts was put on the cover and used in TV commercials aired nationwide.

Ms. Bullard filed suit in Federal Court in Atlanta in 2004 for commercial appropriation.  Unsure whether the suit could be properly maintained in Georgia, the Federal court certified the question to the state Supreme Court.  The Georgia court upheld her right to sue in a decision issued March 28, 2013.  Ms. Bullard is now 26 years old. And now, her case can proceed ostensibly through discovery and then on to trial - at some unknown additional number of years from now.

Ms. Bullard in "Girls Gone Wild Ad": Source: http://www.wsbtv.com/news/news/local/georgia-woman-takes-case-against-girls-gone-wild-s/nSSXx/ 

No Apology in Court

Recently, a civil lawsuit in Connecticut courts against a Catholic Diocese as a result of sexual abuse at the hands of a priest was settled for $1.1M.  The plaintiff was understandably upset at the demeanor of the former Bishop who attended the court proceedings on behalf of the diocese:

“Through this whole process he’s been sitting there laughing and I just couldn’t understand that,” Maynard later said. “He never apologized.”

What should a litigant reasonably expect to get from the courts?  There is a recurring theme in legal movies (i.e. The Rainmaker, A Civil Action, Erin Brockovich, etc) of plaintiffs who sue in court hoping to get something that the system does not provide.  Plaintiffs, victims of tragic loses, are often looking for answers, or an explanation, or validation for their grief, or a chance to confront a wrongdoer, and, sometimes most importantly, an apology. The legal system provides ... money.  Or, more aptly, a chance at money. The reality is that it is rarely in the financial or emotional best interest of most plaintiffs to proceed to trial when a settlement can be obtained. Yet, the unrealistic expectations of plaintiffs often leads to dissatisfaction at the final conclusion of a case.  I find that students often come to a Legal Environment course with a belief that going to trial is the best way to obtain "justice." Yet they are disappointed to learn that all a successful plaintiff gets is money.

This lawyer explains the damage claims that a plaintiff can make. The list does not include an apology - or justice.

Chevron Plays Dirty Trying to Squirm Out of Pollution Judgment

An Ecuadorian court has ordered Chevron to pay $19 Billion for years of intentional toxic dumping by its Texaco affiliate. According to reports, Texaco conducted its operations without regard for even the most minimal pollution controls, dumping toxins directly into the water supply. The resulting pollution covered an area the size of Rhode Island and caused cancers, stillbirths, birth defects and disease to uncountable humans living in the area.  See the video here. But this is only a part of the story.

The lawsuit began in the US in 1993.  For a decade, Chevron fought the US courts claiming that the suit belonged in Ecuador.  After Chevron agreed to submit to jurisdiction in Ecuador and to be bound by any judgment there, the US court relented.  The trial that resulted in the judgment took 8 years. Now, Chevron refuses to pay claiming that the process was tainted by corruption. In the meantime, Chevron has removed most of its assets from Ecuador causing plaintiffs to chase Chevron's assets in other nations. But this is still only part of the story.

Chevron has been using legal process to subpoena the content of the private e-mail accounts and IP addresses of bloggers, activists and reporters who have reported negatively on Chevron's conduct.  The report here at Counterspin (advance the audio to the 18:00 mark of the show) is a shocking tale of corporate arrogance and abuse of the legal system to harass and terrorize those who dare speak their minds. This intentional manipulation of the legal system is in form and intent more despicable than a SLAPP suit in that the target is not even named as a party, but rather receives notice only from his or her internet provider. Then under short deadlines, must scramble to take defensive legal action.

On the merits of the case, each side has its own story to tell ( see videos below).  But on the intentional abuse of process and assault on the privacy of private persons, Chevron has no legal or moral defense.

For those at Chevron who have the job of monitoring blog posts, my e-mail is blawprof@gmail.com.  I hope that everyone who reads this takes a moment to tweet about it or write it in their own blogs or in comments on others - so that Chevron can wear itself out chasing everyone's e-mail addresses.

Chevron's story on the underlying claim:



The other story:

Caps on Damages and Mandatory Arbitration

The video below shows former Alabama Supreme Court  Chief Justice Sonny Hornsby briefly outlining two issues that are explored in more detail in the movie Hot Coffee; Caps on Damages and Mandatory Arbitration. It is nice and short and might make a nice discussion starter in class.