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February 5, 2003

Those wacky lawyers. Sam Heldman is beside himself.
Big big news—big enough that Lou Dobbs was laughing about it on CNN a little while ago, expressing incredulity. Big big news—big enough that even though the suit was filed in Florida, it made the newspapers in New York, Kansas City, and other places. Those darn plaintiff’s lawyers with their crazy new theories are out of control! Somebody actually sued a McDonalds franchise for selling them a bagel that was so hard that it broke their teeth! Ho ho ho, ha ha ha, tort reform. The only problem, of course, is that (as anybody who’s passed the first year of law school can tell you), such lawsuits have been a recognized and settled part of basic law for decades if not centuries. If you sell somebody food to eat, you are giving an implied promise that it’s fit for the purpose it’s sold for—i.e., eating—and you are liable if that promise is not kept. In nearly every state, this is in fact a matter of statute, under the Uniform Commercial Code. Ho ho ho, ha ha ha. Can you imagine, that somebody actually filed a lawsuit to enforce their rights against a corporation that injured them? Ho ho ho, ha ha ha. Next up, after this commercial: somebody actuallly had the gall to call the police when their car was stolen! What will those darn lawyers think of next? Ho ho ho, ha ha ha. Liberal media, ho ho ho, ha ha ha.
[12:15 AM]
Welcome to Electrolite's comments section.
Hard-Hitting Moderator: Teresa Nielsen Hayden.

Comments on Those wacky lawyers.:

kelly h ::: (view all by) ::: February 05, 2003, 01:30 AM:

I hear that criminals are now hiring lawyers to try to get them out of the trouble that they got into all by themselves when the police caught them red handed being criminals! Don't that beat all? Next they'll want us to give them a lawyer for free. Litigious criminal defendants. Zany stuff.

Rachel Heslin ::: (view all by) ::: February 05, 2003, 01:20 PM:

The "common knowledge disparagement" of the infamous McDonald's coffee suit is something of a pet peeve of mine. Gee, people say, it's your own fault for spilling the coffee.

Of course, they don't mention that not only were the burns so bad that they required skin grafts, but there had been over 700 previous complaints about the coffee being too hot, and McD's hadn't done squat to address the problem.

Tim ::: (view all by) ::: February 05, 2003, 01:59 PM:

This is funny, just last week a woman I work with (a very scary, fed-on-talk-radio republican) posted the "Stella Awards" outside her door.

The Stella Awards (google on it) is a completely made up list of frivolous lawsuits that circulates via idiots and their email, named after the woman who sued McDonalds over the coffee (yeah, the woman who got 3rd degree burns over 20% of her body). So, passive aggressively (there's no other option for me) I print out a sober refutation of said crap from snopes.com and just leave it around in the lunchroom. I'm pretty sure she read it. But, considering the latest book she's reading is something like "How the left attacks free speech", I doubt it had any effect.

Avram ::: (view all by) ::: February 05, 2003, 02:47 PM:

The Newsday article that came up in the Google News search contained this mind-boggling nugget:

"Tracey Johnstone, owner of Johnstone Foods [and the McDonalds in question], said she never before had a bagel complaint and had no idea how it could have been prepared in a way that would damage teeth. 'It's a bagel,' she said."

So, have bagel standards outside NYC dropped so far that what gets called a bagel Out There no longer turns rock-hard within 48 hours of coming out of the oven?

Timothy Burke ::: (view all by) ::: February 05, 2003, 03:03 PM:

This is one of those times where a kind of complicated intellectual and political two-step would do us all a lot of good, where we could make a few nods in all directions, try to figure out whether there's a way to reconcile common sense with the law and think carefully about consequences.

Yup, you're entitled to enforce your rights when you buy food and it is not fit to consume. Equally, you're entitled to compensation when you buy coffee and it inflict severe burns on you, because it is not reasonable to assume that coffee is capable of causing burns severe enough to require skin grafts.

So the disparagement of these suits is a fair thing to criticize.

At the same time, by instantly pointing to the media and saying, "If it weren't for Lou Dobbs and talk show hosts, Americans would know better", we're just rounding up the usual suspects and assuming that the masses are asses who lack our superior x-ray vision understanding of these matters and thus get media-manipulated like the proles that they are.

These stories find a ready audience because there is authentically something wrong both with the general functioning of civil law in the US and with the specifics involved in some (not all) of the cases most touted by the tort-reform mafia.

In general, I think many people recognize that the fact that there is a problem when litigation and the courtroom become the first and foremost option, even just at a conceptual level, for containing and resolving complex ethical, moral and interpersonal disputes. There are vastly fewer lawsuits filed and even fewer settled than most Americans suppose, but I suspect a huge number of Americans have encountered a "threat to sue" in many everyday contexts, and possibly have made such threats themselves. This is an older aspect of American life than many suppose--it is not some latter-day fraying of the social contract--but that does not make it any more desirable. We recognize that the "threat to sue" is an unnerving threat not because one fears losing, but because even winning a just case can pose enormous financial and psychological burdens on individuals.

It is not abnormal for many people to wonder about whether there is a better way to adjudicate issues of enormous, sometimes intractable, complexity, a better public sphere more in tune with a democratic ethos. Various parties in aftermath of Columbine clearly had the *right* to sue, but I think you could still legitimately suggest that there is something profoundly simplistic and wrong about trying to boil down what happened that day into being the quantifiable responsibility of anyone but the two young men who did the shooting. Our finest works of culture and our most complex ethical philosophies recognize that moral responsiblity is often not easily assigned in neatly quantifiable packets. Shouldn't we aspire to acknowledge that complexity more fully, and make litigation truly a last resort?

On a more immediate, commonsensical level, these suits are often easy targets because they make legally justifiable claims about harms that most of us suffer and shrug off or handle quietly. I lacerated my gum pretty badly on a piece of cartilage in a crab-salad sandwich once. I wasn't outraged because somehow I didn't see a disclaimer that the crab might have cartilage in it. I've had food poisoning from sausage sold to me by a neighborhood gourmet deli--and because I used to work there six months before that, I knew *exactly* why I got food poisoning. (Poor storage and handling practices which I tried to address as a worker, without getting through to my manager). I had a quiet conversation with the owner--no threats to sue, no dramatics, just some advice and a reminder about some of the procedures I had recommended while I was still working there. They made some changes. Would I have sued if they'd ignored me? No, both because that would be too much hassle and because it would be disproportionate remedy for the harm I suffered.

When one person sues over a harm that many of us have suffered in the context of everyday life where most of us were cognizant of the ordinary, non-negligent risks involved in our behavior--say, in eating McDonald's hamburgers--then I think that person is fair game for public mockery. Because what that person is saying is either, "I am dumber than the rest of you" or saying "I am better than the rest of you because I am entitled for compensation for something that you simply dealt with in an unspectacular and commonsensical fashion."

Jennie ::: (view all by) ::: February 05, 2003, 03:34 PM:

While I think Timothy Burke, above, might have a point, I have to take issue with

" When one person sues over a harm that many of us have suffered in the context of everyday life where most of us were cognizant of the ordinary, non-negligent risks involved in our behavior--say, in eating McDonald's hamburgers--then I think that person is fair game for public mockery"

I, for one, do not feel that serving a bagel so hard that somebody _chipped a tooth_ is a non-negligent behavior. Yes, if you eat fish, you have to accept the possibility of a bone escaping the de-boning procedure. If you eat products past the sell-by date, you're courting gastrointestinal distress. If you drink coffee, it's going to be hot*. If you eat at McDonald's, it's going to be icky. But bagels are not supposed to resemble jawbreakers (except for Dwarf Bagels). Commonsense doesn't dictate that I should expect to have to soak my bagel in my (hot) coffee before it becomes soft enough to eat!

*(but I've been burned, rather badly, by just -boiled coffee, and while it hurt A LOT it wasn't hot enough to require skin grafts. A visit to the hospital, yes, follow-up visits to my doctor, yes. Extensive application of antibiotic goo, yes. One has to wonder just how McD's got the coffee that much hotter than my just-boiled pot. Or whether the individual in question was unfortunate enough to get very bad first aid...but I digress)

Thumb ::: (view all by) ::: February 05, 2003, 03:39 PM:

"On a more immediate, commonsensical level, these suits are often easy targets because they make legally justifiable claims about harms that most of us suffer and shrug off or handle quietly."

Well, speaking of . . .

It was only three weeks ago that while biting into a bread roll at a Hyatt restaurant (Hmm, deep pockets. . . ) I cracked a tooth. Just this last Tuesday, while sitting in the dentist’s chair, I asked how I could have cracked my tooth on something as lame as a bread roll (I understand that the body's warrantee expires when you turn 40, but this seemed ridicules). She told me that bread is one of the biggest culprits in causing cracked teeth because, unlike hard foods/candies (my favorite) that get crushed by the high points of the tooth [cusps], bread gets mashed into the lower areas of the tooth’s grinding surface and creates a very strong outward force on the cusps of the tooth that lead to splitting/cracking.

I guess all I'm trying to point out is that not only didn't the bagel need to be hard to cause the tooth's damage, but a soft bagel could be as much, or greater, of a risk to a tooth than a hard bagel. It’s possible that the person only claimed the bagel was hard because it didn’t make sense [to them] that they could have split their tooth on a soft bagel.

Jennie ::: (view all by) ::: February 05, 2003, 03:49 PM:

Well, well! Bread _is_ generally dangerous to one's dental health! I never! I sit corrected.

Please, somebody, tell me that ice cream is still harmless! I promise not to sue!

Simon Shoedecker ::: (view all by) ::: February 05, 2003, 03:50 PM:

Timothy Burke, in the course of comments demonstrating that he is an intelligent, restrained, and judicious person, and that the world would be a better place if we were all like that, writes,

When one person sues over a harm that many of us have suffered in the context of everyday life where most of us were cognizant of the ordinary, non-negligent risks involved in our behavior--say, in eating McDonald's hamburgers--then I think that person is fair game for public mockery. Because what that person is saying is either, "I am dumber than the rest of you" or saying "I am better than the rest of you because I am entitled for compensation for something that you simply dealt with in an unspectacular and commonsensical fashion."

This last objection could be dealt with by filing a class-action suit.

At this point the bagel lawsuit has merely been filed. According to the AP, "The suit did not say what exactly was wrong with the bagel," and I was wondering the same thing. Like the store owner, I have "no idea how it could have been prepared in a way that would damage teeth."

On that basis, it certainly sounds like a lawsuit without merit, but we'll find out more later. If it is without merit, it'll probably get tossed out of court early on. Most suits without merit - and there are plenty of them - do. It's the ones that result in large jury awards that almost certainly have merit, even if they sound silly. Maybe this will turn out to be one of them; maybe not.

Jennie - the McDonald's coffee woman spilled the coffee into her lap while sitting (in the passenger seat of a car, so it may not have been easy to leap up). That may have contributed to her injuries. I have also read that part of the reason for the lawsuit is that McDonald's admitted liability but refused reasonable compensation, but I do not know if this last point is accurate.

Timothy Burke ::: (view all by) ::: February 05, 2003, 03:55 PM:

The main thing is, we need to recognize that the difference between "a bagel chipped my teeth" and "My gum was lacerated by a piece of crab cartilage" is only partially a legal question of reasonable expectation. It's also and simultaneously a question about proportionate harm *and* about common sense. The two instances are legally distinguished, legitimately, by the reasonable expectation test. I should expect cartilage; I should not expect a bagel as hard as concrete. But on the harm suffered, a chipped tooth and a badly cut gum aren't hugely far apart. The difference might be quantified (dental work vs. stitches), but there's also a common sense weighing of the two as roughly equivalent, and equally endurable as being part of the slings and arrows of everyday fortune.

There's also a practical common sense question that I'm sure many might ask, because most of us respond to "frivolous lawsuit" stories by narrativizing them, by placing ourselves within a story. The question is, "If a bagel is hard enough to chip a tooth, then how do you get to the point of biting down hard enough to do so?" E.g., if I'm going to put a bagel in my mouth, and it's as hard as a rock, I'm going to know that before I bite, and in any event, I don't usually bite into my food as if I'm a piranha trying to gulp both bone and meat down in one smooth motion. You think about the force and unwariness required to bite down hard enough to break a tooth on a bagel that must have had an odd mouthfeel, and you realize that this is another moment where what is legally true and what is commonsensically true are at least slightly in tension.

Kevin Andrew Murphy ::: (view all by) ::: February 05, 2003, 05:11 PM:

When I was ten, a KFC sold us biscuits that were so stale and hard we would have chipped our teeth on them if we had tried to eat them.

The staff was rude and bored, so I came up with the idea of throwing the biscuits at the windows to see if we could break them, operating on the base assumption that we would never be prosecuted because KFC would never live it down if their windows were shattered with their own biscuits.

Unfortunately, only the biscuits shattered, though it took several tries.

Mary Kay ::: (view all by) ::: February 05, 2003, 06:22 PM:

Re bread and dental problems: Oh you bet. Though no doubt mine are extremely atypical. My right front tooth had to be extracted several years ago. (It's all my sister's fault. No, really!)I have a bridge which consists of a false tooth for that space and crowns that go on the tooth on either side of that space. But. But. That false tooth keeps chipping. I go back to the dentist and have it rebuilt and it breaks off again. And the most common thing to break it has been bread. Now, I admit, my favorite bread is sourdough with a crust that fights back but it still seems ridiculous. Last Monday I finally gave up and decided to have a new one made. It should have taken 30-45 minutes to get a new impression and put a temp on. The two teeth that get the crowns have both had root canals, so no possible pain, right. Ha! I walked out of the dentist's office 2 hours later numb to my bottom eyelid as the result of 3, count'em, 3 shots. Secondary ennervation he called it. Apparently the nearby nerves couldn't stand the empty space and filled it up.

And all onna count of some crusty bread. (Note: Patrick can verify some of this as he was there at one dinnner when the damn thing broke on a roll. So I am Not Making This Up.)

LauraJMixon ::: (view all by) ::: February 05, 2003, 08:16 PM:

My understanding is that one of the reasons she needed skin grafts is that she was old. As our bodies age our circulation diminishes and tissues become more sensitive to damage.

Rachel Heslin ::: (view all by) ::: February 05, 2003, 11:59 PM:

For some reason, for all my championing of the McD coffee plaintiff, I keep thinking of the phrase "4th degree cocoa burns," which I believe is from a Keith Laumer Retief book I read when I was 12....

Kevin J. Maroney ::: (view all by) ::: February 06, 2003, 12:45 AM:

The coffee spilled in her lap, and soaked her clothing, which held the boiling-hot coffee against a lot of her flesh for a long time. That's another reason the burns were so severe.

I had long thought that "fFourth-degree burns" were burns which were lethal; a quick google tells me that they are third-degree burns which expose muscle or bone beneath the burnt flesh. Learn something new every day, I guess, so, since it's after midnight, I'm done for today.

Kevin J. Maroney ::: (view all by) ::: February 06, 2003, 12:48 AM:

The coffee spilled in the old woman's lap, and spread along her clothing. This held the boiling-hot coffee against a lot of her flesh for a long time, which was another major reason she suffered such severe damage.

For a long time, I thought that a "fourth-degree burn" was one which was lethal, but a quick google tells me that it is, in fact, a third-degree burn which exposes muscle or bone beneath the burnt flesh. Learn something new every day. (Which, since it's after midnight, means that Thursday is already a complete loss, learning-wise.)

kelly h ::: (view all by) ::: February 06, 2003, 01:25 AM:

Significantly, after remitatur and subrogation, Stella Liebeck came home with about $87K for her pain and suffering. The jury award 2.1 million because they heard evidence that 2.1 million was one day's coffe sales for McDonald's. McDonald's got millions in advertizing in news items relating to this story, and still only paid the medical bills and 87K to Ms. Liebeck for her trouble. The punitive damages were almost entirely remitted.

Liebeck's burns cauterized her vagina. The coffee was 40-50 degrees higher than the industry standard, because coffee has a longer shelf life at 180 degrees. Wendy's, Jack amd others had already lowered the temperature to the 130-140 range, in response to complaints from people who were burnt.

In its defense, McDonald's justified its high temperature by claiming that most of their customers waited until they got to the office to actually drink the coffee. They had recieved hundreds of complaints but had not responded. The punitive damages were a response to that arrogance.

My torts professor was big into this case and also into some studies by Marc Gallanter from the mid-90's.

Stefanie Murray ::: (view all by) ::: February 06, 2003, 02:24 AM:

The thing that bothers me about this is that suits against corporations, even when the claims have merit, seem to be scapegoated far more often by folks like Lou Dobbs than, say, the guy suing Professor Dini. His lawsuit is as frivolous as it gets, with 'agenda' smeared all over it. Even so, the publicity has been largely favorable, getting the gravitas of 'civil rights' type debate.

On the plus side of suing corporations, it's been kind of a trip reading about the 'girls suing McDonald's' case, when it generates stuff like this: "McDonald's argues that the plaintiffs have only themselves to blame, since everyone knows that the highly processed food they serve is less healthy than normal food." (NYTimes, Feb 3) It's always amusing to hear a company arguing that its product sucks, and everyone knows it sucks. :)

Bill Humphries ::: (view all by) ::: February 06, 2003, 03:20 AM:

I was one of Marc Galanter and Joel Rogers many research assistants during the early 1990s. Galanter's written extensively on torts, as well as on the alleged "oversupply" of lawyers in the US.

Now I wish I'd kept those reprints.

To paraphrase broadly (and Kelley, correct me on this if I'm wrong because it's been a decade) we use tort law more often in the US compared to other countries because other countries have more diverse mechanisms and instiutions for these disputes.

Tuxedo Slack ::: (view all by) ::: February 06, 2003, 10:22 AM:

Timothy Burke skrev (emphasis added):

These stories find a ready audience because there is authentically something wrong both with the general functioning of civil law in the US and with the specifics involved in some (not all) of the cases most touted by the tort-reform mafia.

In general, I think many people recognize that the fact that there is a problem when litigation and the courtroom become the first and foremost option, even just at a conceptual level, for containing and resolving complex ethical, moral and interpersonal disputes.

There is a problem indeed. The problem is that, thanks to the myth of corporate personhood, large corporations (or, if you want to get technical, their rich owners) have persuaded the people who staff our legal system that any attempt to watchdog corporations is a violation of the Fourth and Fifth Amendment rights of those corporations, just as any attempt to prevent them from buying and selling legislators is a violation of their First Amendment rights.

American democracy: 1776-1886, stopped twitching December 12, 2000.

Jennie ::: (view all by) ::: February 06, 2003, 11:00 AM:

Thanks for answering my questions on the burn victim. Gah. Ick. I'm thankful I missed my lap, and could get out of the coffee-soaked clothes I was wearing and under some cold water quickly.

Would Americans be less likely to sue if medical care didn't actually come out of their own pockets? I don't mean to open up the Great Health Care Debate, but it seems to me that if getting injured costs one not only pain and suffering, but also next month's rent (or one's life savings, or whatever) then one is more likely to need to at least recoup one's financial losses, and litigation provides the most likely means of doing so.

Has anyone studied the relative incidence of similar tort cases in Canada (or some other country with a vestigial public health care system) and the US? Or would that be kumquats and watermelons, and pointless to boot?

Bob Webber ::: (view all by) ::: February 06, 2003, 11:19 AM:

Jennie, I can't answer your question formally, but I think the penguin who made the comments about torts taking the place of government regulation had it about right. In Canadian provinces there might well be legislation or administrative rules governing the maximum temperature of coffee, and as Kelly H pointed out, much of the dollar amount of judgements is often punitive -- society, in the form of a jury, attempting to discourage a malefactor from a wrong not prohibited by law.

So lawsuits are kind of a societal check on business owners trying to maximize profits by ignoring externalities: in place of a law against dumping toxic waste into the river, one might have people downstream suing the dumper for damages caused by the toxic waste. One of the many things that annoys me about the worst Libertarians is that their position that even more laws can be replaced with suits is often coupled with a real attitude that the plaintiffs in such suits are uniformly ridiculous.

If you really want to revolt a liberal Canadian mind, check out the Sam Heldman weblogs on labour issues -- turns out that employers can stall the implementation of collective bargaining for years and years after the workers at a company have voted to be represented by a union. Law in the US seems very much tilted in favour of owners, and only likely to tilt further in that direction with the current administration's choice of judicial appointees.

Derek James ::: (view all by) ::: February 06, 2003, 11:35 AM:

Austin cartoonist Shannon Wheeler gave an interesting overview of the McDonald's coffee burn lawsuit:

http://www.heloid.org/think20.htm

Greg Morrow ::: (view all by) ::: February 06, 2003, 12:15 PM:

Another source of info on the coffee burn lawsuit is Randy Cassingham's True Stella Awards site:
his account of Stella's case.

It's a pretty good site; Randy's a reasonable man, in the sense that he uses reason.

misanthropyst ::: (view all by) ::: February 06, 2003, 12:22 PM:

"Irony, to be effective, should lightly etch a phrase rather than drip from it ."--Trevanian

Sylvia Li ::: (view all by) ::: February 06, 2003, 12:34 PM:

I can't answer the specific question either, but the individual Canadian response does tend to be more in the direction of pressuring government to ensure that the wrong won't happen again.

Hmm. And... I don't know if it's related or not, but one of the most shocking aspects of everyday American life is seeing lawyers advertise! To a Canadian, lawyers are supposed to be respected professionals, who are expected to behave with the dignity appropriate to their status as trusted participants in the legal system. (How alien is that, eh?)

All right, they might have a restrained listing in the Yellow Pages, maybe... not everyone has the contacts to find a lawyer by word of mouth. But highway billboards?? Placards in public transportation? Radio and TV ads?? Eww-w-w.

Canada has tort cases, of course we do. But we do tend to be a lot slower to file suit, and most of us think of it as a desperate last resort if all else fails, rather than the first option. Perhaps, too, all else fails us... a bit less often.

Stefan Jones ::: (view all by) ::: February 06, 2003, 12:40 PM:

It was a shock when lawyers *began* advertising here.

I think it's a vile practice, and its excesses -- TV ads that portray lawsuits as get rich quick schemes -- plays right into the hands of the tort reform lobby.

Jennie ::: (view all by) ::: February 06, 2003, 01:25 PM:

Thanks for the thoughts.

I had carelessly _assumed_ that Americans went to court in personal injury cases to recoup their financial losses, and that there was a direct link between lack of subsidized public health care and a higher incidence of personal injury litigation.

And yeah, the big lawyer billboards in the States always take me aback. There's one along the highway heading east out of Buffalo with two guys' big faces looking slick and greedy and generally untrustworthy, and they always provide me with one of thos "yep, this really is a foreign country" moments.

Thomas Nephew ::: (view all by) ::: February 06, 2003, 01:25 PM:

If anyone else is having trouble linking to Heldman's piece, the URL that works for me inserts an extra "/?/" in the link PNH provides, ie,
http://sheldman.blogspot.com/?/2003_02_01_sheldman_archive.html#90278294. (This might explain his missing archive problem, too.)

Arthur D.Hlavaty ::: (view all by) ::: February 06, 2003, 01:38 PM:

Sylvia and Stefan: There's a case to be made for lawyer advertising as a way of making legal services available to the less privileged.

Jennie ::: (view all by) ::: February 06, 2003, 02:02 PM:

I'm not certain how billboards and TV or radio commercials make legal services more accessible than advertisements in the Yellow Pages or listings at Community Legal Offices do. They do have Community Legal Services in the States -- I just checked. And I believed that Community Legal Services were just that -- a way of making legal services available to the less priviliged.

I did find my lawyer in the Yellow Pages, btw. I phoned several before I found one I could afford and with whom I was comfortable. His listing, like his office, was small, restrained, and functional.

Bill Humphries ::: (view all by) ::: February 06, 2003, 02:56 PM:

A google search which turned up some relevant material:

http://www.google.com/search?q=American+Disputing+In+Comparative%0A+Context

Also have a look at Bert Kritzer's research:

http://www.polisci.wisc.edu/users/kritzer/

Kritzer's book on American disputing: _Let's Make a Deal_ is also good.

Sylvia Li ::: (view all by) ::: February 06, 2003, 04:55 PM:

What Jennie said.

I don't have a problem with lawyers having a nice informative web site, either -- and a web site these days can be quite accessible to the less privileged, via libraries. But there's a pretty clear line between making your name available to people who actively go looking for a lawyer, and hyping your legal services to the public like a used car dealer.

Note that, in Canada, it's the lawyers' professional associations that have exerted the heaviest pressure against that used-car type of advertising; they don't want to lose the public's respect.

Vicki Rosenzweig ::: (view all by) ::: February 06, 2003, 07:36 PM:

As long as we're inventing narrative: suppose you broke a tooth on a bagel at a restaurant. What would you expect, and want, the manager to say?

I suspect that unfortunate people who are told "we're very sorry, send us the dental bill and we'll pay it" are satisfied (so long as the bill is paid); people who get only an apology may or may not be; and those who are told that it must be their own fault are most likely to sue.

Also, someone has to be first. Is there some kind of unwritten rule by which whoever is the first person to sue a malefactor is inherently ridiculous? Or maybe, just maybe, people hesitate to be first for fear of such ridicule.

Timothy Burke ::: (view all by) ::: February 06, 2003, 08:22 PM:

Maybe some people hesitate because they're human and understand that other humans make mistakes. Or maybe they hesitate because they understand that litigation is costly both financially and psychically and one should hesitate to take that step because of a trivial harm.

Maybe some people hesitate because they understand there may be other remedies short of a lawsuit for a proprietor who insults you by failing to acknowledge his responsibility for chipping your tooth.

kelly h. ::: (view all by) ::: February 06, 2003, 09:17 PM:

It may not be quite accurate to say that lawyer advertising creates access for lower income folks, but it certainly does educate those folks about rights they would likely not know about. A nice website is helpful to people who have web access, but it doesn't do much for the plaintiff who doesn't use the internet. Lots and lots of people don't.

I think it's true that lawyer ads feed the fire of tort reformers, but does so with an irony so satisfying it's almost worth it. These hucksters are pots, kettle, black.

Does anyone know how the term "trial lawyer" became code for plaintiff's side lawyer? I have seen some trials, and both sides usually come with counsel.

And regarding Marc Gallanter, I didn't have the big picture view of his work you had, Bill. Your memory of Gallanter's central theme is consistent with what I took away. I remember being firmly convinced by empirical evidence that people did not avail themselves nearly often enough of the only avenue to a remedy available in the US. I also recall that low income Americans were far less likely to ever talk with a lawyer about their injury. That point goes to the notion of advertising creating access. It actually does something more like educating people that access is a phone call away.

I think that opponents of tort reform should cultivate the message that the rules of civil procedure filter frivolity from the dockets pretty well. Judges do not like hearing bullshit cases when they have dockets crowded to next Christmas. FRCP 12(b)(6) covers failure to state a claim. That is a nice operational definition of frivolity I think.

Sorry for the long post.

Sylvia Li ::: (view all by) ::: February 07, 2003, 12:33 AM:

Yes, and as Jennie said, this is a foreign country. The pieces fit together. The reasons lawyers advertise here are all bound up with inner city poverty, and illiteracy, and the war on drugs, and racism, and erosion of social services, and libertarianism, and free market fundamentalism, and money = speech, and a whole bunch of other stuff. I understand that. It's just... really different from Canada.

Weird, to live here, and see how unlike Canada this country is in its deep structure, and then to have Americans tell you, genially, that, "Hey, you're just like us." It's disconcerting, until you get used to it; they nearly always mean it in the nicest possible way.

kelly h. ::: (view all by) ::: February 07, 2003, 01:11 AM:

Doesn't Canada have the common law? How do they arrange for compensation for torts? Do they use schedules or something? Not that Texas will ever change, but I am curious about Canada if it's really different.

Bob Webber ::: (view all by) ::: February 07, 2003, 12:18 PM:

Canada does indeed have courts for torts. Perhaps the biggest difference (at least in the past) in tort handling has been constraints on contingency fees, specifically that attorneys have not generally been able to represent individual litigants in tort cases for a contingency fee, or fraction of the damages awarded.

Although some argue that contingency fee lawyers can't afford to take on frivolous cases, but from what I've seen this is not true. If a potential litigant is willing to put up the cost of preparing and filing an action, a lawyer has relatively little reason not to agree to present the case and the incentive of a possibly large fee to lead her to agree to it. Kind of a lawyerly version of scratch tickets and Keno, IMHO.

From this point of view, large-scale advertising is worthwhile because it increases the number of fish taking the bait and ending up on the hook potential litigants willing to front some money to explore the possibility of a successful lawsuit, which covers the cost of billboards, etc..

Sylvia Li ::: (view all by) ::: February 07, 2003, 12:20 PM:

Yes, of course Canada has tort law, and there certainly are lawsuits.

But before individual Canadians launch a lawsuit, they tend to put their complaints before a Labour Relations Board, or a Landlords and Tenants Department, or a Human Rights Commission, or the CRTC, or a government ombudsman, or a local newspaper columnist who makes his/her reputation by investigating injustices and writing about them... there are a lot of options for settling disputes. Some of them are government regulatory bodies, with full ability to enforce their decisions; others depend on the court of public opinion.

Culturally, too, Canadians are more likely to accept that bad things do happen, and that sometimes they really weren't anyone's fault. Perhaps too much so...

Jennie ::: (view all by) ::: February 07, 2003, 01:31 PM:

Sylvia and Bob, thanks for addressing this.

I did some reading on Canadian Personal Injury law this morning, but not enough to really give kelly h a good answer.

As Sylvia Li said, of course we have Tort law. It's part of the same body of law that has evolved from British common law as US Tort law, Australian tort law, and modern British tort law. In fact, according to Duhaime's (ww.duhaime.org/tort1.htm) judgements given in one of these countries can be raised as precedents in another. The University of Windsor Law Library page (http://www.cs.uwindsor.ca/units/library/vs32.html) remarks "it is not unusual for tort law to differ, in terms of tendency, between Canada and the US, although the law is often similar."

I followed some of the links that Bill Humphries suggested, and came to a paper by Oscar Chase that indicated that the number of tort cases in the US is unusual compared to other countries -- he cites statistics indicating that the US leads five other industrialized European countries in both the number of lawyers per population [not very telling -- they could all be contract lawyers, or family lawyers, or whatever --jw] and tort costs as a percentage of the GNP. (Oscar Chase, "American "Exceptionalism" and Comparative Law")

At least one of the other websites I read (darned if I can remember which one -- sorry!) suggested that in Canada, judgements on particular cases are likely to be taken into account in future legislation. Perhaps this accounts for the creation of the Landlord-Tenant tribunals, and Labour boards, and such, that Sylvia mentioned.

Apologies for the long post.

Brian Ledford ::: (view all by) ::: February 07, 2003, 03:37 PM:

I guess I worry about options/choices that are lost because of some of lawsuits. For example, the folks suing abiocor after the death of a artificial heart patient, despite a signed consent form and a patient advocate to explain it. What happens if this kills this sort of research? The case, as best I can tell, hasn't been dismissed out of hand, so it isn't one of the baseless ones by that definition, but they had a signed consent form, as good and reasonable a form as could be gotten. If the suit goes forward and the company loses and goes under, is that fair or good? My very naive question: how much does it cost you to be wrongfully sued? Can small companies afford to be sued at all?

Brian

Barry ::: (view all by) ::: February 07, 2003, 05:13 PM:

People might want to review Sam's blog, for a look at how labor law works in the US. There's very little liberal judical softness going on there.

Randolph Fritz ::: (view all by) ::: February 07, 2003, 07:16 PM:

As someone who's both filed a worker's comp claim and helped my mother file a major personal injury lawsuit, my personal experience is that the problem of lawsuits is vastly overrated.

The worker's comp system was tort-deformed years ago and payments for even total disability or dismemberment are quite small. The cap on legal fees is such that people without major injuries generally cannot find a lawyer to take their case and, of course, the insurance companies who handle the claims have lawyers on on staff, so it's a difficult situation for the injured party. In my case, I was lucky to get bits and pieces of free legal advice, and if I hadn't gotten them, and been able to stitch them together for myself, it's quite possible I would not have been able to afford treatment when my chronic problem flared up a second time.

In my mother's case, though she had been hit by a car, and lost substantial mobility from the injury, the lawyer advised us to accept the modest face value of the drivers liability insurance policy rather than to sue. There were a couple of reasons; one of the biggest is that one can lose a lawsuit, whereas the insurance money is a sure thing. Another is that, even if one wins, one will probably have trouble collecting--in most cases collection would come from either the other party's house or retirement savings (which are not protected from lawsuit) and the other party, understandably, if regrettably from my mother's viewpoint, is going to fight to keep those. Also, it was unlikely that my 81-year old mother would have made a convincing witness.

Based on this and on my discussions with my mother's lawyer, I believe that most of what we hear about lawsuits is wrong: most personal injury suits are small in value and settled out of court, most lawyers prefer to avoid going to court if they can get a reasonable settlement for their clients, and most plantiffs will accept such settlements. I think the cases we hear about in the media are rare and often based in either dire financial need or severe injury on the part of the injured party, or appalling conduct on the part of the party who did the harm. I suppose there are some harassment suits that succeed, but my impression is they are quite rare, and largely won by well-heeled clients who can afford to pay hourly fees for legal services.

Vicki Rosenzweig ::: (view all by) ::: February 07, 2003, 10:14 PM:

The problem isn't that the "proprietor who insults you by failing to acknowledge his responsibility for chipping your tooth." It's that most Americans don't have dental insurance, and the proprietor is refusing to fix the problem he caused.

Throw in that dental work is generally painful, and you have someone who is facing an unpleasant remedy for an unpleasant problem, and being told it's going to cost a couple of weeks' pay. If it reasonably looks as though someone else is responsible for the problem, why shouldn't I ask that someone to pay for the dental work?

(For the record, when I fell getting off a train and got a concussion, I found myself explaining to people that I wasn't suing: but not only was the fault at least partly mine, I had medical insurance. It's a lot easier to stand on such principles when one doesn't have to choose between paying the doctor and the rent.)

Beth Meacham ::: (view all by) ::: February 08, 2003, 11:42 AM:

And here's another reason why people go to court:

Some years ago, I was rear-ended by an uninsured driver. I was injured, though not substantially -- whiplash, sprained shoulder and back; it hurt for a month and I still have tendonitis in one shoulder from it -- though my vehicle did not sustain much damage. It was an Isuzu Trooper, and built like a tank.

I carried uninsured motorist coverage, naturally. But when I invoked it to cover my own injuries, my insurance company tried to refuse to pay. They claimed that since there was little damage to my vehicle, I could not possibly have been injured. Never mind that the car that hit me had accordianed its front end. The adjuster I was talking to actually said to me, "if you want this covered, you'd better talk to a lawyer."

So I did. And ended up suing them for substantially more than the cost of my medical treatment and car repair, since I had to cover the lawyer's fees. It was settled out of court, but cost the insurance company a lot more than it would have if they'd just accepted their responsibility and paid my bills.

Peter H ::: (view all by) ::: February 08, 2003, 01:28 PM:

Speaking as a former personal injury lawyer, what drove me out of that area of practice was the tendency of both sides to be lying. As in most areas of reality, there is no one side. I handled cases where an old man seriously injured a young adult and we offered the total insurance that the old man had and hoped that would could settle and he could keep his pension. I also handled case where factory workers were playing chicken holding their arms underneath a 28 ton press. The winner (who keep his arm underneath just a little too long) was suing the press manufacturer for designing the press in the early 1960s in such a way that he and his buddies could do something this stupid.

I wish I could say that these were aberations. For every dirty corporate client, I could show you a plaintiff (and plaintiff's doctor) lying about injuries and how they happened. For every fraudulent patient, I could show you an insurance company that should have paid on the spot. And then there are the juries who think that the money comes out of nowhere. If it was only one or two a year, I'd probably still be doing it, but the percentage of human rats on both sides was too high for me to tolerate.

By the way, take the medical reports on both sides, and any other expert testimony, with large portions of salt. The expert witnesses are bought and paid for by the respective lawyers.

Sad ::: (view all by) ::: February 08, 2003, 11:56 PM:

As much as i lean left, I'm not going to side with you here. It's not so much that people sue for things like this, it's that they sue for ONE REASON. Not to pay for the crowns they'd need if indeed they did injure their teeth. Those are a few hundred dollars each. No, the person who filed this lawsuit wants and has been promised by his shady lawyers: MILLIONS. $5 million, $10 million, $100 million. Where does it stop. Just because mcdonalds has the money, doesn't make it right the funnel that money into this person's pocket. If they'd broke their teeth at Lou's diner, they'd might get $10,000 if they're lucky. Probably put Lou out of business. Mcdonalds won't be put out of business so easy, but for them to have to pay millions for the same situation is wrong. You shouldn't win the lottery just because you broke your teeth at mcdonalds, instead of while eating a bagel bought at the corner market.

Teresa Nielsen Hayden ::: (view all by) ::: February 09, 2003, 12:43 AM:

It doesn't bother me that lawyers advertise. You know, and I know, and just about everyone here knows, how to go about getting a lawyer when you need one; but plenty of people out there don't know the first thing about it.

They don't know how the judicial system works. They're unclear on the difference between workman's comp, payouts on private insurance policies, and bringing suit for damages. They aren't very clear about their rights. They tend to assume that life is naturally prone to disasters and privations. It makes them less likely than the rest of us to seek redress for their injuries.

I'm also not bothered by lawyers taking cases on a contingency basis. There are plenty of households out there that couldn't front the money to pursue a civil suit if the parents were working full time and in perfect health.

Someone who's sustained a major injury is going to have big medical bills and lots of incidental expenses. They may well have lost their job. If they've got kids, they may or may not be able to manage cooking, cleaning, transportation, childcare, etc., the way they used to, and paying someone else to do it gets expensive fast. Forget about fronting money for a lawyer; they may be having trouble fronting the money for groceries.

I, too, wince at the pugnacity and vulgarity of ads for personal-injury law firms. On the other hand, many of their potential clients are depressed (illness and poverty will do that), and need to be reassured that these guys really can help. Besides, tasteful, restrained educated-white-person ads would scare some of 'em off.

And yes, I know there are plenty of plaintiffs out there who'd be crooks if only they knew how, and others who think that being a runner-up in the Darwin Awards should entitle you to cash prizes. The latter category is regrettable; but since we don't have laws against stupidity per se in any other area of human endeavor, I doubt the efficacy of trying to legislate against stupid plaintiffs, either. (And just because you're stupid doesn't mean the other guy wasn't negligent, as the man running a red light said when he hit a car driving on the wrong side of the road.)

As for the crooks and frauds, I feel about them the same way I do about scammers who pretend they're narcoleptics because they have a recreational admiration for the drugs used to treat narcolepsy: If they're pulling a con, they should be prosecuted for it, same as we prosecute anyone else who's engaged in fraud. But the fact that fraud exists is no reason to penalize all the people who have a legitimate need to use the system.

(...)

Concerning all those stories about dumb lawsuits:

Of course I've heard them. They're obviously a crock. I'm amazed at all the people who can't hear how false they are.

I saw the squibs about the MacDonald's coffee case when it was happening. Gosh, how dumb: someone had a cup of MacDonald's coffee balanced on their lap in their car, the coffee spilled, they got burned, and now they're suing Macdonalds. The nerve of some people, eh? ( ">Here's a more recent piece of thilke tripe.)

I don't believe in the innocence of that story. The normal folk process simplifies and streamlines stories, but it wouldn't turn a story about a passenger in a stopped car into a one that suggests that she was the driver and that the vehicle was in motion. Neither would it lightly discard details like extensive skin grafts or a cauterized vagina. (It might drop that last one, though, because it hurts just to think about it.) And it wouldn't drop the part about Macdonalds having gotten hundreds of complaints about its habit of keeping its coffee hotter by 35 or 45 degrees F. than its competitor chains. It might smooth down the story, but it wouldn't smooth it into that shape.

This is all so obvious. There's a bunch of other stories in circulation that're about outrageous awards. They also sound false. Moreover, they sound like they were all written by the same person.

(...)

It has occurred to me that just saying "Can't you hear it?" is pretty useless, so I went googling for an authoritative source that says the same things I'm saying. Sure enough, there it was: the American Trial Lawyers Association. They say it's all a shuck. One of their links says the person whose existence I infer from the style of all those stories most likely works for the United States Chamber of Commerce.

(Cue Slappy): That was predictable.

Patrick Nielsen Hayden ::: (view all by) ::: February 09, 2003, 01:39 AM:

"It's not so much that people sue for things like this, it's that they sue for ONE REASON. Not to pay for the crowns they'd need if indeed they did injure their teeth. Those are a few hundred dollars each. No, the person who filed this lawsuit wants and has been promised by his shady lawyers: MILLIONS."

Ah. They sue for "ONE REASON." None of the other information in this thread matters; you have special, unique knowledge, telepathic insight into every plaintiff's soul.

Actually, what you are is a liar. And not a very effective one, either.

Mary Kay ::: (view all by) ::: February 09, 2003, 03:38 AM:

And either completely out of touch or lying about the dentist thing too. Trust me, if there's one thing I know about, it's crowns. By the time you've done the root canal, the buildup, the temp and the permanent crown my dentist has a house payment. In northern California.

MKK

Teresa Nielsen Hayden ::: (view all by) ::: February 09, 2003, 09:42 AM:

Forgive me, Patrick, but I have to disagree. Sad is a sloppy thinker, but he isn't necessarily lying in the normal sense of the word. I think he has a raging infection of bad memes. He's been told all these sleek plausible falsehoods about wicked people who only sue corporations in order to get rich quick; and, being naturally ill-defended, he's believed them.

I'll grant contributory negligence in his assertion that people only sue for one reason, and that reason a bad one. It ought to have occurred to him that that's an unlikely state of affairs.

Bob Webber ::: (view all by) ::: February 09, 2003, 11:31 AM:

After doing some research, it seems to me that where the US and most other countries with legal systems based on English Common Law diverge to create the differences noted in this comment thread are in deciding what constitutes champerty, maintenance, and barratry: the promotion of lawsuits in which one is not a principal, generally for financial gain.

To someone from a jurisdiction with heavy prohibitions against these practices and a lawyers' guild, like Ontario (the only province in Canada with an explicit champerty statute in addition to Common Law considerations), acting on a contingency fee may still appear "inherently immoral" and "definitely sinister," as the practice was described in the First Statute of Westminster in 1275, and the more recent development of a market in venture capital for lawsuits seems troublesome under the Champerty Act of 1305.

Lawyers trolling advertising on TV in the USA are presumed to be merely providing information about their services for people with genuine grievances which can be litigated but which might not be if they were not made aware of the options open to them, rather than engaging in barratry. This certainly results in a higher rate of litigation than in America than in other countries, and in fact that's the desired effect. Tuning the system to reduce the number of fraudulent cases can certainly be a problem, but as Teresa notes the freedom to advertise does also serve its stated purpose of making the availability of legal remedies more apparent to the public at large.

Similarly, although contingency fees can indeed be a form of champerty, they can also make legal services available to persons whose finances fall between a level where legal aid is available and a level where a lawyer can be paid for out of pocket -- this latter being partly dependent on the complexity of the case and the depths of the pockets of the defendant. Madam Justice Wilson's 2001 opinion from the Ontario Superior Court is an interesting summary of the issues of champerty and the Champerty Act (Ontario) vs. plaintiff's access to legal services -- in this case a suit against Imperial Tobacco and others by a spouse following the death of her husband from lung cancer. In general, English Common Law jurisdictions are finally deciding that after 700 years the balance of Justice now requires that contingency fee services be allowed in some circumstances, though as noted in Justice Wilson's opinion, this has consequences for some other common practices such as the assignment of costs and the dismissal of attorneys.

The USA has of course allowed contingency fees for quite a while, and the frontier of champerty in America has moved along quite a bit further. Massachusetts, for example, does not apply prior restraint to champerty at all, and anyone is free to buy or sell interests in the financial outcomes of lawsuits at any time, subject to the oversight of the judiciary on a case-by-case basis. In other US jurisdictions champerty still exists, but third parties like Capital Transaction Group, Inc. are allowed to front money to support existing litigation in exchange for an interest in the outcome. As noted on the linked page, secondary fees for complex litigation -- expert witnesses, 3rd party research and brief writing, preparation of flashy and Flash exhibits to help juries visualize a lititgant's understanding of the circumstances, &c. -- may not be part of the attorney's fees, and therefore not available as part of the contingency fee as such. FindLaw published a two part set of articles by Professor Anthony J. Sebok of Brooklyn Law School entitled "Venture Capitalism for Lawsuits," which summarizes the champerty issues associated with trading shares in tort suits in the USA.

If one needed a single piece of damning evidence against the existing restrictions on buying into a lawsuit, it might be the Business Council of New York State's opposition to New York bill S.7609 of 2002, which (would have?) explicitly made legal the assignment of claims and causes of action for purposes of bringing an action to recover the claim legal for claims over $1,000,000. I'm sure it won't convince anyone whose prejudice is in favour of the corporate defendants in such cases, but clearly the circumstances of the claims considered in S.7609 are often such that an individual plaintiff is trying to put on a complicated case against a corporate entity with relatively infinite financial and legal resources to protect itself from even coming to trial.

Although Professor Sebok certainly is right in saying that the buying and selling of human suffering is repugnant, the suppression of genuine actions by defendants so that plaintiff's are never fully heard by the courts is even worse. So, after a sleepless night of web research and thought, I find myself relieved to move past the fear of champerty and barratry conditioned into me by growing up in Ontario and accept that the champerty parts of the "tort reform" enacted under Edward Plantagenet are not so useful in modern America, or even in modern England, Canada, Australia, New Zealand, &c..

Randolph Fritz ::: (view all by) ::: February 09, 2003, 04:34 PM:

"a raging infection of bad memes". What a lovely phrase.

My one comment is that one doesn't have to be ill-defended to be taken in; a lot of effort (and money) is spent on inventing and distributing those bad memes. Memological warfare.

Graydon ::: (view all by) ::: February 09, 2003, 06:53 PM:

The thing I find troubling isn't the question of a secondary market in civil suits; that was pretty much inevitable, and I'm not sure it's any more of a bad thing in the abstract than any other risk-diffusing secondary market mechanism.

What I find troubling is the disagreement as to the purpose of a court; the traditional, for at least some values of traditional, purpose is to decide if an injustice has occured in a way that society will enforce reparations for. (For some value of reparations, and some value of enforce.)

The idea of courts as a means of *creating* justice, rather than identifying if the mechanisms of justice have failed, bothers me a lot, since it indicates that the rest of the system isn't doing its job very well.

Xopher ::: (view all by) ::: February 10, 2003, 11:14 AM:

Graydon: The rest of the system isn't doing its job very well. And the same people who want "tort reform" contributed to making it fail to do its job.

I guess you could say it's working fine, if you believe that it was designed to protect the rich and powerful against the poor and helpless.

Larry Kestenbaum ::: (view all by) ::: February 10, 2003, 05:38 PM:

There's a chapter in "Bowling Alone" (the 2000 book by Robert Putnam, not the 1995 article) about this.

One surprising fact is that in 1970, the U.S. had fewer lawyers per capita than it did in 1900.

After 1970, as social connections and social trust and reciprocity loosened (provably in many ways, see the hundreds of studies and references in the book), resort to the legal system, to legal forms of transaction, and to legal advice escalated considerably. And the number of lawyers skyrocketed.

I mentioned this to Eric Raymond, and predictably as a libertarian/anarchist, he blamed it on the growth of government regulation. But (1) 1970 was hardly a turning point in regulatory matters; (2) the New Deal, the Great Society, etc., didn't generate a noticeable bump in the lawyer population in the forty years before 1970; and (3) most of the lawyers employed today don't seem to be working in fields much affected by regulation.

One thing Putnam doesn't really address is the supply side of the lawyer market: tremendous numbers of people were attracted into the profession by glamorous portrayals like "L.A. Law," flooding the market, so that the number of barely employed lawyers is probably much larger now than it was thirty years ago. In other words, the demand for lawyering hasn't really grown at the same rate as the number of lawyers. But unquestionably it has grown a lot.

Todd Larason ::: (view all by) ::: February 11, 2003, 01:54 AM:

http://www.abcnews.go.com/wire/US/ap20030210_2131.html is another good example of -- something. Maybe a lawyer getting involved when a simple apology would/shoulg have been enough, maybe a newspaper article that just makes it sound that way by leaving out intermediate details (for instance, was an apology ever asked for? I don't know).

rea ::: (view all by) ::: February 12, 2003, 02:22 PM:

"Although some argue that contingency fee lawyers can't afford to take on frivolous cases, but from what I've seen this is not true. If a potential litigant is willing to put up the cost of preparing and filing an action, a lawyer has relatively little reason not to agree to present the case and the incentive of a possibly large fee to lead her to agree to it."

Not the way it works. Most plaintiffs' attorneys front the expenses. Technically, the client is obligated to pay them back; in practice, after a loss, this is usually written off as a bad debt, unless the attorney is lucky enough to have a very well-to-do client. The expenses are one factor pressuring plaintiffs to settle. In my experience, the plaintff's attorney who brings a lot of silly cases goes broke.

I've got to say, as somebody who has much the same background Peter H. claims, I don't recognize the system he describes. Maybe he's from a more corrupt part of the country than my West Michgian. But I rarely see cases I think are flat out fraudulent--usually, the system is pretty good at exposing such things. The debatable cases often involve subjective factors like pain threshholds ("Is the back pain REALLY so bad as to prevent plaintff from working?").