TorteDeForm

Justinian Lane

The Myth Of The Frivolous Lawsuit

One of the catch phrases of tort reformers is “frivolous lawsuits” – a lawsuit that has no legal basis, or is so petty that the suit isn’t justified. Often, tort reformers cite high profile cases, such as the McDonalds coffee case[1] to try and show that the court system is “broken” and that “runaway juries” routinely award ridiculously large verdicts in frivolous cases.

Tort reformers argue that these “frivolous lawsuits” are “clogging the courts” and cost honest, taxpaying citizens billions of dollars every year. They further claim that the only way to stop “frivolous lawsuits” is to pass legislation that will make it more difficult to file a “frivolous lawsuit.”

What tort reformers don’t tell you is that the legal system already has three safety mechanisms in place to prevent, dismiss, and correct “frivolous lawsuits” and “runaway jury verdicts.” The first mechanism, the contingent-fee agreement, prevents frivolous lawsuits from being filed in the first place.

The Contingent-Fee Agreement:

Have you ever seen or heard an ad for an attorney who promises something like, “No cost to you unless we collect!”? That’s a contingent-fee agreement; whether the attorney gets paid is contingent upon the attorney collecting money for you. Nearly every attorney that brings a lawsuit for a personal injury case does so under a contingent-fee agreement. How does a contingent-fee agreement work?

Let’s say you’ve had an auto accident and decide to hire an attorney to protect your rights. If you shop around, you’ll find that contingent-fee agreements vary from attorney to attorney, but generally range from 25% to 50% of the total settlement or judgment you receive. For simplicity, we’ll say you hire an attorney on a 40% contingent-fee agreement. If you were to receive $10,000.00, the attorney would get $4,000.00 in that case as his or her fee, in addition to being reimbursed for any expenses he or she incurred in building your case. These expenses include obvious things like court filing fees and postage, but there are some hidden expenses in many cases that the general public doesn’t know about: expert witness fees.

What is an expert witness fee? Well, in most complicated cases – and virtually all medical malpractice cases – the plaintiff needs to hire expert witnesses to help prove his or her case. In many states, you’re not even allowed to file a medical malpractice suit without first having a report from a physician that says, in essence, the doctor or hospital you wish to sue committed malpractice.

While your attorney is willing to work on a contingent-fee basis, which means it may be months or years before he or she is paid, expert witnesses want to be paid up front, and it’s the attorney who has to pay them out of his or her pocket. As you might surmise, expert witnesses aren’t cheap: they’re highly qualified professionals who generally have high hourly fees.

What kind of expert witnesses might be needed in a given case? Let’s take some real-life examples of experts and what they charge:

Professional Engineers: If you’re suing a manufacturer because you got hurt by a product that you think was poorly designed, you’ll need at least one professional engineer. The going rate for engineers is around $225.00 per hour, and many charge an additional $100 or more per hour for time spent in depositions and in court. So, if that engineer spent ten hours reviewing a design, and five hours in court, that would cost your attorney almost $4,000.00. Again, that’s money that your attorney pays out of his or her pocket, and only gets back if you win your case. In a complicated design case, it’s not uncommon for several engineers to spend fifty or more hours evaluating the product, at a cost to your attorney of over $10,000.00

Doctors: If you have a medical malpractice case, or any case where the extent of your injuries is called into question, you’ll need to hire a doctor as an expert witness. Doctors, as you might guess, are expensive. Plan on having your attorney spend around $250.00 per hour, possibly twice that much for a well-regarded specialist. In a complicated medical case, you may need three or more doctors, including expensive specialists like anesthesiologists and neurologists, with a cost of $20,000.00 or more to your attorney.

Nurses: You’ll probably need a nurse in any case where you need a doctor. While they’re not as expensive as doctors, they’ll still be around $75.00 an hour. Just like doctors, they’ll also probably have to spend ten to twenty hours on a case – another couple of thousand dollars that your attorney has to gamble on your case.

Surprisingly, finding expert witnesses isn’t easy. Often, a lawyer will have to “shop around” for experts. That means your lawyer will spend time finding experts with the right qualifications for your case. Then, he or she would gather all the pertinent materials and send them to an expert for review. Sometimes, the expert will review the records and say that they’re not interested in the case. Or perhaps they’ll review the records and not find anything helpful to your case. Either way, the expert will still have to be paid, and it’s your lawyer who will have to pay them. It’s not uncommon to go through two or three experts, and several thousand dollars, before the “right” expert is found. Of course, it’s also not uncommon for a lawyer to think his or her client has a great case, only to be told by several experts that the case has little or no merit. This is especially true in medical malpractice cases. In such an instance, that lawyer will have wasted thousands of dollars, but the client will owe nothing to the attorney – thanks to the contingent-fee agreement.

Now, if you were a lawyer with a contingent-fee agreement, would you be willing to spend thousands of your own dollars and hundreds of hours on a case you’re not confident you can win? If your answer is “no” to that question, then you’ve just seen how contingent-fee agreements prevent frivolous lawsuits from being filed.

While contingent-fee agreements prevent frivolous lawsuits, they also do something even more important: They provide access to the courts to everyone. Most lawyers charge $100 to $300 an hour, with “superstar” lawyers charging as much as $750.00 per hour. At those rates, a complicated injury trial could cost an injured person $30,000 – which few people can afford. If contingent-fee agreements were abolished, two things would happen: Only the rich would be able to file lawsuits, and attorneys would be far more willing to file a lawsuit that doesn’t have merit; when you’re paid by the hour, it doesn’t matter if you win or lose.

No case is “easy”, and in general, the more complicated the case, the harder it is to win. Contingent-fee agreements attract lawyers to the complicated cases. Contingent-fee agreements drive lawyers to take those cases to trial, instead of settling for a fraction of what the case is really worth. Contingent-fee agreements allow the poorest of the poor to hold corporate juggernauts accountable for their actions in a court of law.

Is it any surprise then that some special interest groups are attacking the contingent-fee agreement? They argue that it’s not fair for attorneys to take such a “large percentage” of any recovery of their clients. Their arguments have worked: Some states have put limits on the percentage an attorney can take Do you think that those special interest groups are truly interested in ensuring injured people aren’t taken advantage of by unscrupulous attorneys?

Damage caps and attorney-fee caps work together to make the complicated cases less enticing for lawyers, and the consequence is that those who traditionally receive large jury verdicts – the catastrophically injured, or the families of those who are killed – won’t be able to find attorneys to bring their case to court. The corporate entities that support tort reform won’t be held accountable when they act irresponsibly or unethically, and will instead enter into confidential settlement agreements with those who are harmed by their products.

The irony is that as those corporate entities take away the individual’s right to a jury trial, they’re doing it under the guise of protecting the public from “greedy lawyers.” It’s also important to note that capping contingent-fees will do nothing to reduce so-called “frivolous lawsuits.” That’s because contingent-fee caps only discourage lawyers from filing complicated lawsuits on behalf of the severely injured.

So, what happens if an inept lawyer decides to file a frivolous lawsuit? The second safety mechanism, the Summary Judgment, would be used to dismiss the suit.

The Summary Judgment:

Tort reformers say that the courts are overwhelmed with “frivolous lawsuits” – lawsuits that have no legal basis, or are so petty as to not be worth the time of the court system. They say that to protect the justice system, we need to make it harder for individuals to file lawsuits.

But what if instead of putting barriers up that could prevent legitimate lawsuits from being filed, there was a tool that could quickly and easily dismiss frivolous lawsuits? What if this tool not only dismissed frivolous lawsuits, but could also be used to force the plaintiffs in frivolous lawsuits to pay the attorney fees of the defendant? Wouldn’t such a tool be a better solution than passing laws that would hurt individuals with legitimate lawsuits?

This tool not only exists, but has been in use in America since 1937; it’s called the Summary Judgment.

The purpose of the summary judgment is to determine whether there is a genuine need for trial. When a party files a motion for summary judgment, they’re telling the court that there is no need for trial because the facts and law applicable to the case would prevent the other side from winning.

We’ll use a fictitious car wreck as an example of how a summary judgment would dispose of a frivolous lawsuit:

Mr. Smith runs a red light and slams into Mr. Jones. Mr. Smith claims the light was green, but two witnesses say the light was red. Mr. Smith is found to have a blood alcohol level that is nearly twice the legal limit. Mr. Smith doesn’t dispute the fact that he was drunk, but still decides to sue Mr. Jones for the damage to his car and for his medical bills.

Mr. Jones hires a lawyer. Mr. Jones’ lawyer spends a few hours drafting a motion for summary judgment. At the end of the motion, Mr. Jones’ lawyer requests he be awarded attorney’s fees from Mr. Smith because the lawsuit is frivolous.

The lawyer for Mr. Jones files his motion for summary judgment, and includes evidence that Mr. Smith was legally intoxicated, and under the laws of that state, therefore legally responsible for the accident, even if he didn’t run a red light.


In such a case, the judge would most likely grant the summary judgment, and Mr. Smith’s lawsuit would be dismissed. The judge could also decide to order Mr. Smith to pay for Mr. Jones’ attorney’s fees. In the end, Mr. Jones wouldn’t be out any money, and Mr. Smith would have had his day in court.

The requirements for summary judgment vary from state to state, but in general, you need to show the court two things:

1: That the facts clearly support your side. In Texas, for example, you have to show that “reasonable and fair minded people” cannot possibly come to different conclusions about what the evidence shows. If reasonable and fair minded people could come to different conclusions about the facts of the case, then summary judgment shouldn’t be granted.

2: That the law clearly supports your side. A common use of the summary judgment is to dispose of lawsuits where the statute of limitations has passed. Many states have a four-year statute of limitations for breach of contract. So, if you bought a car in 1995 and tried to sue the dealer for breach of contract in 2000, you wouldn’t legally be able to win – the statute of limitations would bar you from recovery – and the judge would grant the car dealer’s motion for summary judgment. In most medical malpractice lawsuits, there is a two-year statute of limitations.

Summary judgments have disposed of frivolous lawsuits for decades. They allow a defendant in a frivolous lawsuit to get out of the case quickly and without the expense of a full-fledged trial. Often, the defendants are even awarded their attorney’s fees for preparation of the motion for summary judgment.

The bottom line is that because of the summary judgment, very few “frivolous lawsuits” ever make it to trial. It could even be argued that any case that makes it past summary judgment can’t be a frivolous lawsuit because an impartial judge – not a “runaway jury” – decided that the case had enough merit to proceed.

Tort reformers want to make it hard for you to file a lawsuit, harder for you to win a lawsuit, and impossible for you to collect a meaningful amount of money in a case involving serious or permanent injury. To accomplish these goals, they claim that frivolous lawsuits and runaway juries are destroying the justice system. However, tort reformers don’t talk about how summary judgments have been effectively used for over 100 years to dispose of untold thousands of lawsuits.

The next time someone tries to persuade you that we need more barriers to filing lawsuits, ask them why they don’t think the summary judgment is getting the job done.

Let’s assume that somehow a frivolous lawsuit makes it past summary judgment and a “runaway jury” awards more money then they should. Several judicial remedies exist to correct these verdicts.

Directed Verdicts:

Most people think that a jury can make whatever decision they want. This isn’t the case at all. A judge can issue a directed verdict, which tells the jury that they must make a certain decision. Usually, a directed verdict is used when something comes out at trial that prevents the other side from winning as a matter of law. For example, it could come out during the trial that a key event happened so long ago that the statute of limitations prevents the plaintiff from winning. In such a case, there would most likely be a directed verdict for the defendant.

Less often, the evidence in a case is so strong that the judge feels that there can be only one verdict, and he or she would order the jury to return that verdict. One example would be a case where someone caught the auto accident in question on videotape, and the tape clearly shows that one of the parties to the lawsuit ran a red light, and is therefore at fault. In such a case, the judge may direct the jury to find in favor of the person who did not run the red light.

Directed verdicts are more common in criminal cases than in civil cases, because the summary judgment would typically be used to dispose of a civil case before a jury trial. However, directed verdicts can and do allow judges to dispose of civil lawsuits without merit.

Judgment Not Withstanding The Verdict (JNOV):

Everyone is familiar with the concept of appealing a decision; if you lose your case, you can generally appeal it to a higher court. However, not everyone is familiar with a Judgment Not Withstanding the Verdict (JNOV). JNOV is an acronym for Judgment non obstante veredicto, which is Latin for “notwithstanding the verdict”.

A JNOV is one of the ways that a judge can reduce the dollar amount of a verdict. Some states require that an attorney file a motion for a JNOV, while other states allow a judge to issue a JNOV sua sponte, which is Latin for “of its own accord.” A JNOV can set aside an entire verdict, or just parts of a verdict. Here’s a good example of how a JNOV could correct an improper jury verdict:

In many states, if a jury finds that the conduct of a defendant in a lawsuit was “knowing” and/or “intentional”, the court must double or triple the amount of a jury verdict. Let’s assume that in a medical malpractice case, a doctor made an honest mistake. Maybe he transposed the numbers in a prescription, and the plaintiff ended up taking too much medication. But, for whatever reason, the jury found that this honest mistake was intentional, and awarded $10,000 dollars. Because the doctor’s conduct was found by the jury to be intentional, the judge would have to award the plaintiff $30,000 dollars. However, if the evidence was very convincing that this was an honest mistake, a JNOV could eliminate the finding of the jury that the doctor’s conduct was intentional, and the plaintiff would be awarded only the $10,000 dollar jury verdict.

Directed verdicts and JNOV’s are two mechanisms that judges have available to prevent juries from awarding damages when they should not, and to reduce jury verdicts that are clearly excessive. One example of verdict reduction occurred in Stella Liebeck’s famous lawsuit against McDonald’s. In that case, the judge reduced the jury award from over $2 million dollars to $480,000 dollars. Of course, tort reformers don’t tell the public about the many ways judges can reduce or ignore improper jury verdicts. Tort reformers aren’t as concerned about reducing large jury verdicts as they are about the bad press that accompanies the verdicts. In fact, most large jury verdicts are paid for at least in part by insurance policies!

Settling After a Decision:

In many cases, such as the famed McDonald’s coffee case, the plaintiffs in a lawsuit will settle the case for less than they were awarded. In the McDonalds case, Stella Liebeck was awarded $2.7 million dollars, and the judge reduced the award to $480,000. Stella settled with McDonalds for a confidential amount less than $480,000.

Plaintiffs and plaintiff’s attorneys are often motivated to settle because a settlement means they won’t have to go through a lengthy and potentially risky appeals process. This is where big companies have the advantage over individual plaintiffs: A major corporation can afford to spend time and money to drag a case out for years, while plaintiffs and their attorneys more often can’t afford to wait. Remember, the plaintiff’s attorney may have $50,000 of his or her money invested in the case, and may need it back sooner rather than later. Settlements are extremely common, and are yet another way that even justified large jury verdicts are reduced.

Appealing The Decision:

The majority of cases where a jury awards millions of dollars are appealed, and many times, those verdicts are reduced or overturned on appeal. For example, one appellate court reduced a $505 million dollar verdict down to $19 million dollars – a $486 million dollar reduction. For the record, this case wasn’t a personal injury case. It was an intellectual property case where one big corporation sued another. That’s another secret tort reformers don’t want to get out: Businesses sue each other far more often than they are sued by individuals.

While some verdicts are reduced, others are overturned entirely by appellate courts. It’s important to realize that the judges in appellate courts aren’t overly emotional jurors, but are seasoned judges who place far more weight upon the legal issues in a case then on the emotional issues. As such, incredibly large jury verdicts are rarely upheld by the many appellate courts in our country. In fact, the United States Supreme Court decided a series of cases that guides appellate courts to determine whether a jury award is so large as to be unconstitutional.

Despite what tort reformers claim, large jury verdicts are the exception, and not the rule. When juries do return large verdicts, the plaintiffs usually settle for less than verdict or see the verdict reduced or overturned by an appellate court.

Our justice system is a system of checks and balances. Before someone can even bring a case, they have to convince an attorney that their case is worth gambling time and money on. The contingent-fee agreement weeds out countless cases that have no merit. Once an attorney accepts the case, a judge will most likely scrutinize the facts and law applicable to the case through a summary judgment. If the judge decides that the case has merit, then the case will be presented to an impartial jury of twelve men and women. If those twelve men and women are convinced that the plaintiff has proven his or her case, the jury will then rule in favor of the plaintiff, and award compensation for the plaintiff’s injuries. The judge has an opportunity to modify, reduce, or set aside the jury’s verdict. Then, the defendant has an opportunity to appeal his case to higher courts, and even more experienced judges can then modify, reduce, or set aside a jury’s verdict.

The burden of proof in any case is always on the plaintiff, which means the deck is stacked in favor of the defendants. Multimillion-dollar jury verdicts rarely survive the appeals process. Yet tort reformers continue to argue that we need more barriers to file lawsuits, and statutory limitations on how much money can be awarded in the lawsuits that are filed. The reason is that the big corporations who push for tort reform don’t want the bad press and public scrutiny that accompanies trials where people are severely injured or killed. Instead, they prefer to enter into confidential settlements that the public never knows about.

Tort reform isn’t about fixing a “broken” justice system; it’s about protecting the public image and bottom lines of the biggest and most powerful companies in the world. Tort reform isn’t about protecting doctors from high insurance rates; it’s about protecting their insurers from having to pay large judgments. Tort reform isn’t about keeping “greedy lawyers” from filing frivolous lawsuits; it’s about keeping those who are severely injured out of the court system and away from the public eye.

Justinian Lane: Author Bio | Other Posts
Posted at 1:02 PM, Sep 14, 2006 in Civil Justice
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Comments

And those safety mechanisms work. The McDonald's coffee case, like most of the famous cases the corporate protection crowd trots out as anecdotes, is much more reasonable than they would like you to believe. It's amazing how all these "tort-reform" lawyers like to ignore or misrepresent the most basic part of any lawsuit - the facts.


What's also always missing from discussions about "runaway juries" are the stories of the actual jurors. Why don't the corporate defense attorneys ever profile these thoughtless, unfair jurors? Because the truth is, the American juror is you and he is me. Talk to a juror after a trial and you'll learn that they go to great lengths to be fair and conscientious.


So-called "tort reform" proponents might want to live with the disease and squalor of a Charles Dickens novel, but everyone I know actually enjoys the quality of life we enjoy thanks to consumer protection and the tort system.

Posted by: Seth | September 14, 2006 4:31 PM

Speaking of "misrepresenting the facts," let's talk about this post:

"In such a case, the judge would most likely grant the summary judgment, and Mr. Smith’s lawsuit would be dismissed. The judge could also decide to order Mr. Smith to pay for Mr. Jones’ attorney’s fees. In the end, Mr. Jones wouldn’t be out any money, and Mr. Smith would have had his day in court."

This is an absolutely false statement of the law; in just about every jurisdiction, the judge could *not* order Mr. Smith to pay Mr. Jones's attorney's fees unless Jones can prove that Smith's attorney acted in bad faith, so Mr. Jones is out the cost of defending the suit; in the other jurisdictions, judges almost never award attorneys' fees.

Moreover, if Mr. Smith lies under oath and says he had the light, Mr. Jones can't get summary judgment, and has to deal with the expense of a trial. Smith will suffer no consequences for his perjury, and neither will Smith's attorney.

These are very real cases: look on the auto section on Overlawyered, to find two eight-digit verdicts against Ford Motor Company in cases where the driver admittedly fell asleep at the wheel. Consumers ultimately pay those costs, as do the American workers who lose their jobs to foreign competition that isn't hamstrung by such ludicrous lawsuits.

It's fascinating that Lane views such a scenario as an example of the system working, when it's precisely the type of scenario where the system isn't working and tort reformers are seeking reform to make the world look much more like the way Mr. Lane seems to think it already looks.

I have yet to see a post here that honestly represents reformers' real views (or honestly represents what really happens in a lawsuit), demonstrating the bankruptcy of the reform opposition, which apparently realizes that it couldn't win a real debate on the issues.

What is mystifying to me is why Lane is taking the side of the reform opponents. His views are much more consistent with the reform supporters, and I can only conclude that he has never actually engaged with what reformers actually say.

Posted by: Ted | September 16, 2006 4:31 PM

Hi Ted, glad you found this site. I've missed our little discussions over at Corpreform.com. Surely you haven't forgotten about them? I only ask because you "can only conclude that I have never actually engaged with what reformers actually say." Or are you not a reformer?

You quoted a portion of this post, but forgot a couple of key facts. I wrote that Mr. Smith was legally intoxicated and did not dispute that fact. I also wrote that in this state, a law is on the books that automatically assigns fault to an intoxicated person, regardless of the facts. Thus, even viewing the facts in the light most favorable to Mr. Smith, he is barred from recovery as a matter of law; a genuine fact issue over the color of the light is irrelevant. Under such circumstances, a compelling argument could be made that Smith's attorney did in fact act in bad faith, and by your own admission, the judge could therefore award attorney's fees - or other sanctions.

Setting those facts aside, you need to clarify something you wrote. First, you claim that it's an absolutely false statement that Mr. Smith would be ordered to pay attorneys' fees. But one semicolon later, you write "in the other jurisdictions, judges almost never award attorneys' fees." Does that mean that on the rare occasion that judges do award attorneys' fees, they're not following the law? Or does it mean that judges don't exercise the option to award attorneys' fees as often as you would like? Either answer shows that my statement isn't "absolutely false."

And as for Smith suffering no consequences for his perjury? Last I checked, perjury is a criminal offense, and whether he suffers any consequences depends solely upon the district attorney's office - not any tort reform legislation. Or would you "reform" the criminal justice system by allowing civil defense attorneys to bring charges as they see fit?

Quibbling over the details of a made up case doesn't prove or disprove my larger argument: That the summary judgment is an efficient way to dispose of frivolous cases, and any case that makes it past summary judgment is not frivolous. Do you disagree?

P.S. You mention the costs of eight-figure lawsuits at Ford being passed onto the consumer. I noticed that Alan Mulally, Ford's new CEO, just got an $18.5 million dollar sign-on bonus. Won't that eight-figure bonus get passed on to consumers, too? Of course it will. But you believe that a board of directors has the right to award whatever compensation it sees fit to its CEO, even though those costs will be passed onto consumers in the same way that jury verdicts will.

Oh wait! I forgot! Ford is insured against eight-figure jury verdicts, so those costs actually don't get passed on to consumers. Too bad there's no insurance Ford can buy to protect consumers from runaway salaries...

Posted by: Justinian Lane | September 17, 2006 10:28 AM

Also, Justinian, what's your basis for claiming that Stella Liebeck settled for "less than $480,000"? I've read every publicly available piece of information on that lawsuit, and you're the first person I've seen make this claim about the confidential settlement.

Posted by: Ted | September 17, 2006 11:30 AM

I'm just laughing at the claim that summary judgment "quickly" ("and easily") eliminates lawsuits. I wonder if any of the anti-tort reformers have ever actually practiced law.

Posted by: David M. Nieporent | September 17, 2006 6:27 PM

Justinian, your comment adds many more factual errors.

1. You will see that I fully quoted your hypothetical.

2. Which state automatically assigns fault to a drunk driver? I'm not aware of any--GM got hit with a huge multi-billion dollar verdict in a case where an accident was caused by a drunk driver. If anything, the reverse is true. Most states don't allow evidence introduced that an injured party wasn't wearing a seat-belt. Cook County lost a case because the court refused to admit evidence that the plaintiff was a drunk driver. Here's a similar case in Louisiana.

If your argument is that if a different tort reform were passed to automatically assign fault to drunk drivers then there is a possible hypothetical case where that drunk driver would lose a summary judgment motion, that's hardly an argument against tort reform, since your hypothetical still requires a tort reform to be passed. I note that ATLA and its compatriots has historically opposed such reforms--the Center for Justice and Democracy even criticized a law that sought to hold ammonia thieves responsible for injuries they caused because it provided legal immunity to the farmers who were victims of the thieves.

3. It is an absolutely false statement that a defendant is awarded attorneys' fees for winning a summary judgment motion without additional steps being taken. No state or federal court has such a procedure.

4. Perjury is a regular problem with the plaintiffs' bar. I've documented several examples in my Overlawyered response. Are you claiming that my documentation is false? Specific refutation appreciated.

5. Many many meritless cases make it past summary judgment, and any lawyer with experience will tell you that. Some judges, contrary to law, refuse to issue summary judgments, just like some judges certify class actions that shouldn't be certified.

6. I believe Ford and Chrysler self-insure, but even if they didn't, their insurance costs reflect the judgments issued against it. That adds real expenses to automobiles and to consumers (every time you buy a car, $500 of the cost goes to the tort system), and the plaintiffs' bar has severely hurt American competitiveness and American jobs—foreign manufacturers have an advantage, because plaintiffs' lawyers are unable to obtain the same civil discovery without paying for expensive translations, so the plaintiffs' bar goes after the American manufacturers who have documents that are easier to misrepresent. You seem to think insurance grows on trees, but it's not free.

7. Are you seriously claiming that Ford or Chrysler should be liable when a sleeping driver causes an accident? How about when a drunk driver causes an accident? Will you support me in passing laws that hold drunk drivers solely responsible for accidents they cause rather than spreading blame to deep pockets as the plaintiffs' bar seeks to do?

Posted by: Ted | September 17, 2006 11:22 PM

David,

The lack of substance of your argument is striking. The fact that you find something funny, does not carry your objection to Justinian's reasoning very far. Try another more convincing approach........ and we can have a real convesation about the issue. Unless the above is all that you have to offer this debate

Posted by: Cyrus Dugger | September 17, 2006 11:23 PM

1: With regard to Stella's Case. I made a typo; the punitive damages were reduced to $480,000 and the economic damages were $160k, for a total judgment of $640,000. I meant to say she settled for less than $640,000. This is only speculation which is based upon my assumption that McDonald's wouldn't have likely settled for more than the total judgment.

2: As to Mr. Nieporent's observations about "quickly" and "easily" eliminating lawsuits with summary judgments: I drafted a motion for summary judgment in a breach of contract case in about three hours. The lawyer I worked for was nice enough to bill the client at a reduced rate since I was just a paralegal. I believe the total legal fees were around $750.00, including the time he spent in court. Since the contract provided that the prevailing party would be awarded attorneys' fees, it didn't cost our client (the defendant) a dime. Pretty quick and easy if you ask me. You may also want to check out the "no-evidence summary judgment" available in some jurisdictions. Such a motion in the aforementioned breach of contract case would have taken me less than 2 hours to draft.

Posted by: Justinian Lane | September 18, 2006 3:43 AM

"Because the truth is, the American juror is you and he is me."

No, it isn't. Well, it isn't ME, anyway. (Statistically speaking - I actually did serve on a jury once, oddly enough.)

Go tak a good long look at how actual jury selection occurs in major cases, and you'll se a pattern...

-the better educated you are, the less likely you are to be on a jury
-white people are less likely to be on a jury
-middle- and upper-income pople are less likely to be on a jury

(And that's "less likely" as in, they are under-represented in comparison to their percentage of both the population AND those who don't claim some kind of excuse from jury duty.)

"Tort reform isn’t about protecting doctors from high insurance rates; it’s about protecting their insurers from having to pay large judgments."

In many states, "their insurers" are THEMSELVES (that is, doctor-owned insurance groups), as all normal, private insurers have LEFT THE MARKET, as it's impossible to stay in business. To put it another way, they can't CHARGE ENOUGH to actually COVR THEIR COSTS, much less make any money.

"The McDonald's coffee case ... is much more reasonable than they would like you to believe."

No, it's actually much LESS reaonable than most urban legends even make it out to be. Go look up the actual facts about the case (such as the normal, industry standard temperature for serving coffee) before you open your mouth. Example: industry standard temperature for coffee: 190 degree F. STILL TODAY, actually (go to Starbucks for an example).

"Talk to a juror after a trial and you'll learn that they go to great lengths to be fair and conscientious."

I'll grant that (as it's usually true), but that doesn't mean the system isn't broken. Hav you ever SAT on a jury? I have - it's absolutely amaing the things that you find out AFTER the case, things that you weren't allowed to know. Things that COMPLETELY and UTTERLY change what a "just" outcome would be.

"Settling After a Decision"

You leave out that the loser must often put up a bond to appeal, and that the bond in question can often be literally too high for them to pay, making appeal impossible (witness the recent case with a multi-BILLION dollar bond, just to appeal a decision that was so bad that it was widly agreed by both sides that it would be over-turned on appeal).

There's plenty more, but I doubt you'll listen, so I'm going on to other things. I hope you actually do care and actually do look into these things yourself (instead of just regurgitating ATLA "fact"-sheets).

Posted by: Deoxy | September 18, 2006 10:47 AM

David made the substantive point that summary judgments are neither quick nor easy. That non-attorney Lane was able to do one in a run-of-the-mill contract case (where, apparently, the only dispute was the legal meaning of the language of the contract) hardly means that summary judgments are readily available in tort cases. And, I note, Cyrus Dugger has repeatedly posted here arguing that even contract cases shouldn't be easily resolved by such simple means as looking at the plain language of the contract.

In any event, Dugger has no business singling out Nieporent for his remarks when his co-blogger Lane is saying such absurd statements as "Ford is insured against eight-figure jury verdicts, so those costs actually don't get passed on to consumers." Have you folks no shame or sense of embarrassment about plainly false arguments like that?

Justinian confuses his run-of-the-mill contract case with the type of cases reformers are complaining about. He still doesn't explain on what grounds a tort defendant can collect attorneys' fees for winning a summary judgment, or why reformers are evil for suggesting that the world should look like the way Lane mistakenly thinks it already does.

In the Overlawyered comments, Justinian Lane announces his support for the liability reform that would hold criminals solely liable for their crimes. If nothing else, he plainly agrees there that the justice system is broken in that it allows such absurd results as holding the World Trade Center bombers only partially responsible for their crime; one hopes that he also speaks out against Dugger's posts that complain that Congress passed legislation that protected airlines from being bankrupted in liability for the intentional torts of Mohammed Atta and Osama bin Laden.

Posted by: Ted | September 18, 2006 1:33 PM

There are many points to respond to. My apologies if this post is disjointed for that reason.

Summary judgments & Attorneys' Fees

Ted claims that no state or federal court can award attorneys' fees for winning a summary judgment motion. Ted's claim is 100% wrong. The firm I worked for represented a plantiff who was ordered to pay $7,500 in attorneys' fees to the defendant who prevailed after a summary judgment hearing. The attorneys' fees were upheld by the appellate court. If you really want to press me on this, I'll see if I can't find either the order or (more likely) the cause number so you can check up on it yourself. Perhaps Texas is just different than the rest of America, but in that state, a defendant can indeed be awarded attorneys' fees if he or she wins a summary judgment. Granted, he or she has to request them in the motion and attach an affidavit as to the reasonableness of the fees... but that's hardly "additional steps" since it's done with the motion.

Perjury

Again, I never denied that perjury is a problem with our justice system. I asked you if you'll acknowledge the fact that it isn't just the plaintiffs' bar that has allowed its clients to commit perjury. Are you ducking the question, or do you really believe all defense attorneys are pure as snow?

The bigger question you left unanswered is this: What would you do to end perjury? Again, it's a criminal matter, not a civil matter. At Overlawyered, I stated I would support creating a cause of action against a perjurer in any jurisdiction that doesn't already have such a cause of action. What else can we do? Outlaw personal injury cases because some crooked plaintiffs' lawyers and their unethical clients might lie in court?

Insurance

Once again, companies like Ford, GM, and Chrysler choose to pay multimillion dollar salaries to their executives. These salaries are most certainly passed onto consumers in the same way insurance premiums and/or civil judgments are. I'm not saying corporations can't pay their executives as they see fit. What I am saying is that if your goal is to save consumers money, you'd support salary caps in the same way you support damage caps. Similarly, if your goal was to pass laws that make American manufacturers more competitive with their foreign counterparts, you'd want to pass laws that prohibit executive compensation at American companies from exceeding the compensation of their foreign competitors. But once more, your goal is not to help American companies be more competitive. Your goal is to ensure that the only citizens corporate executives are accountable to are their shareholders.

Look at it from my point of view as a consumer: For the sake of argument, I'll go along with your figure that the price of the new 2007 GT500 Mustang I'm eyeing includes $500 in tort costs. Well, what difference does it make to me if I have to pay $500 for the tort system vs. $500 for executive salaries? There's an off chance I may benefit from the tort system, but I'll never be a VP at Ford, so from my perspective, if anything should be capped, it should be salaries. In a similar vein, what about the hundreds of dollars I pay to support the advertising campaign of the car? I don't need to see the commercial to know I want a 500HP car, so I'm paying an "advertising tax." And hey, I know I want mine to be just as Henry would want it: Black. So I'm also paying a "color tax," too so Ford can offer other colors for the car.

If you think those arguments are absurd - which they are - then why can't you see it's also absurd to say that a reason to "reform" the justice system is to save consumers a buck?

Drunks, sleepers, etc.

At Overlawyered, I already said I would support legislation that bars a felon from suing for injuries he or she suffered during the commission of the felony. As for sleeping drivers? I think it depends upon the facts of the specific case. What if the driver fell asleep and shortly thereafter a defective fuel pump set the vehicle ablaze? In such a case, the fact that the driver was sleeping would be irrelevant. Or what if the driver fell asleep and got into an accident in which the airbag was defective and didn't deploy? Again, the fact that the driver was asleep doesn't change the fact that a component of the car was defective. I'm sorry, but I refuse to make broad generalizations about the validity of an entire class of lawsuits based upon a one or two sentence description. Instead, I'd prefer to look at the individual facts of each case and make a rational, informed decision. You know, kind of like the civil justice system should operate.

Oh, and as to your Cook County drunk case? Your description indicates the blood alcohol level didn't come in because the judge deemed it to be unreliable. I swear, you can't win with you people: When the judge excludes unreliable evidence that benefits a defendant, that's somehow wrong. Wasn't it just a few paragraphs ago you complained about junk science? You know... unreliable evidence. I suppose the difference is that if the unreliable evidence benefits the defendant, it should come in.

Me and the ATLA

Interesting fact: I've never read any of the ATLA fact sheets I'm supposedly regurgitating. One reason is that despite the fact they published an article of mine in TRIAL magazine, I'm not eligible for membership into the group as I'm neither a lawyer nor a law student. I was even thrown out of the Texas Trial Lawyer's Association (and my money refunded) for the same reason. Such shortsightedness on the part of the trial bar is perhaps one reason why the tort reformers are gaining ground.

Posted by: Justinian Lane | September 18, 2006 3:43 PM

Cite the law, Justinian. As you described it on Overlawyered, your law firm was working a contract case with a clause for fee-shifting--the court was simply enforcing the contract, rather than imposing fee-shifting for summary judgment. Tort defendants don't have that option. In Texas, as I've documented on Overlawyered, they have to prove the plaintiff acted in bad faith before they can get fee-shifting. Tex. R. Civ. Proc. 13; GTE Comm. Sys. Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). "A trial court may not base Rule 13 sanctions on the legal merit of a pleading or motion." Aldine ISD v. Baty, 999 S.W.2d 113, 116-17 (Tex. App. Houston 1999).

JL writes "Once again, companies like Ford, GM, and Chrysler choose to pay multimillion dollar salaries to their executives." This is a Nick-Naylor tactic--if you don't like the way the debate on tort-reform is going, switch the discussion to executive pay, even though it's utterly irrelevant to the question. Whether executive salaries were capped at 18 thousand or 18 billion wouldn't change the question of the legitimacy of liability reform a jot. It's not an either/or--customers are paying both $500 of tort tax and a few dollars for executive salaries.

Lane provides no defense of the two sleeping-driver verdicts actually discussed in Overlawyered. In the Cook County case, the driver was legally drunk, which is precisely the scenario where Lane said drunk drivers shouldn't recover.

Lane claims never to have read an ATLA fact-sheet, a claim refuted by the fact that he regurgitated at least one word for word in his other blog's fictional recounting of the McDonald's coffee case. It's really not worth my time to track through Lane's writings and ATLA's writings looking for other matches, but that one immediately comes to mind. Fascinatingly, in this blog, Milberg Weiss Justice Fellow Cyrus Dugger actually linked to one of my posts on the McDonald's coffee lawsuit, but repeated just about every claim that I refuted in that post without addressing any of my arguments.

Further discussion will be on Overlawyered. I don't see anything here that makes this blog worth any more of my time.

Posted by: Ted | September 18, 2006 5:02 PM

Ted, you have a nasty little habit of trying to put words in my mouth to prove me wrong. I *never* said the case I was describing was a tort case. You made the blanket (and wrong) statement that no court can ever award attorneys' fees to the prevailing party in a summary judgment. I corrected you. You apparently meant to say "in a tort case."

The reason, once again, I bring up executive salaries is to point out the hypocrisy in the arguments of those who argue for tort reform to save consumers money. If your goal was to save consumers money, you'd surely find many other areas to "reform", including executive compensation. But you don't want tort reform to save consumers money. So it's disingenuous to argue for tort reform on that basis. You yourself say it's not an either/or - that I have to pay for the high costs of executive salaries AND the tort system. You then ask me to support "reform" that will reduce the tort system costs. Why shouldn't I also support "reform" that would cap salaries, too? Again, I might someday need the tort system... but I'll never need the executive salaries at the Big 3.

For perhaps the third time: I'm not going to support or defend cases you either briefly summarize or reference anecdotally. You don't tell me what causes of action the plaintiff sued for. You don't tell me what affirmative defenses, if any, the defendant raised. Most importantly, you don't tell me the fact pattern of the cases. "Some drunk sued a company and got a bunch of money" doesn't allow for an intelligent analysis of anything, let alone the health of our tort system.

I do note that you ducked my question about the one crucial detail you did provide in the Cook County case: If the blood alcohol evidence was deemed by the trial judge to be unreliable, then why should it have been admitted? Simply because it would have helped the defense? Do you routinely argue that unreliable evidence should be put before a jury? No - you're generally on the other side of the fence, complaining that "junk science" and unreliable evidence are presented to juries too often! The way you talk, there has to be dozens of cases where drunk drivers recovered millions against innocent defendants - can't you find me even one such case where the blood-alcohol evidence was either properly admitted or improperly excluded?

I'll pop by Overlawyered later today to see what else you have to say on the matter.

Posted by: Justinian Lane | September 19, 2006 9:50 AM

"Cite the law, Justinian. As you described it on Overlawyered, your law firm was working a contract case with a clause for fee-shifting--the court was simply enforcing the contract, rather than imposing fee-shifting for summary judgment. Tort defendants don't have that option."

OK, Ted. Here you go: According to N.D.C.C. § 28-26-01(2) ""2. In civil actions the court shall, upon a finding that a claim for relief was frivolous, award reasonable actual and statutory costs, including reasonable attorney's fees to the prevailing party. Such costs must be awarded regardless of the good faith of the attorney or party making the claim for relief if there is such a complete absence of actual facts or law that a reasonable person could not have thought a court would render judgment in their favor, providing the prevailing party has in responsive pleading alleged the frivolous nature of the claim. This subsection does not require the award of costs or fees against an attorney or party advancing a claim unwarranted under existing law, if it is supported by a good faith argument for an extension, modification, or reversal of the existing law." So in at least one state, defendants may in fact be awarded attorneys' fees in tort cases if they prevail in a summary judgment against a frivolous lawsuit. A slew of North Dakota Supreme Court cases have upheld that law.

A helpful hint: I find it generally a bad idea to make universal declaration, such as "no court" or "no state" or "no law exists." Instead, I prefer to use such words as "many" or "some." In some instances, I even say things like "I'm not aware of any." It makes it much harder to be proven completely, totally, and utterly wrong.

Posted by: Justinian Lane | September 19, 2006 11:32 AM

"upon a finding that a claim for relief was frivolous"

In most jurisdcitions, the court's definition of "frivolous" is ludicrously limited. In at least many jurisdictions, the suit, no mattr how bad, must have been brought in bad FAITH to be considered frivolous.

In other words, completely and utterly ridiculous stuff that people on the street find too stupid for words doesn't gt considred "frivolous" by the court.

You keep making the case FOR reform instead of against.

Posted by: Deoxy | September 19, 2006 11:53 AM

Justinian, the only one here "completely, totally, and utterly wrong" is you. You're not reading (or at least not understanding) what you're quoting.

N.D.C.C. § 28-26-01(2) doesn't award attorneys' fees for winning a summary judgment claim. It awards attorneys' fees "upon a finding that a claim for relief was frivolous." If you continue to read the next few sentences in the statute that you quoted, you'll note that the section then defines frivolousness so narrowly that it is nearly impossible to obtain such a finding, even in your hypothetical (which in turn required a tort reform to be passed before winning on summary judgment was even possible). A plaintiff merely has to argue for extension of the law, and it's no longer "frivolous" in the narrow legal sense.

North Dakota isn't unique in any sense; it, like most states, is following almost word for word the 1983 or 1993 versions of FRCP 11, each of which is similarly toothless.

Your claim in the post was that someone who wins a summary judgment can get attorneys' fees as a matter of course. I stated that this is not true in any American jurisdiction; summary judgment by itself is not grounds for attorneys' fees. I stand by that statement of the law, which is absolutely true. In each jurisdiction, more has to be proven by the winning party before they can obtain attorneys' fees, and, as a matter of de facto practice, judges almost never award the fees if that additional prove requires proof of "frivolousness." Go ahead and check the other 49 jurisdictions we haven't discussed yet if you don't believe me; I already have. You're not telling me anything I don't already know.

In the meantime, you would be well advised to be less condescending to people who know far more about this than you do. I don't have any incentive to make this up, because (1) there are people far smarter than me who would catch my errors, and (2) the truth is all I need to prove my points. (I recognize reform opponents don't have that second incentive.)

Posted by: Ted | September 19, 2006 1:55 PM

Ted, any condescension on my part is because you have:

Refused to admit that even one judge in the entire country is biased in favor defendants in civil trials.


Refused to admit that even one defense attorney has ever encouraged or permitted a client to commit perjury.


Refused to explain why it was “wrong” for a judge to exclude unreliable evidence from a civil proceeding.


Conceding any one of those points doesn’t automatically invalidate your entire position. If anything, refusing to concede those points only hurts your case as it makes you look more interested in spreading propaganda than one who is seriously engaged in the debate.


You had indicated that in no circumstances can a court ever award attorneys’ fees to a defendant who prevails in a summary judgment - which was incorrect. I proved that your assertion was wrong, so now you’re trying the age-old sophist trick of misstating my position: “Your claim in the post that was someone who wins a summary judgment can get attorneys’ fees as a matter of course.” I made no such claim.


I claimed (correctly) that in some jurisdictions, a defendant may be awarded attorneys’ fees if he or she wins summary judgment in a frivolous lawsuit. Recall that the title of my post was “The Myth of the Frivolous Lawsuit” and not “The Myth of the Complicated Lawsuit.”

It seems to me that the real problem here is a disagreement over the word “frivolous.” To me, frivolous means a lawsuit with either no basis in law or fact, or in which the damages are too small to justify wasting the court’s time. To the tort reform movement, frivolous seems to mean lawsuits in which a person was seriously injured.

I guess it’s easier to convince people to reduce frivolous lawsuits than lawsuits in which a person received third-degree burns to their genitals.


Finally, I freely acknowledge you know more about the civil justice system than I do. I always look forward to your comments, because you often force me to re-examine my position, to hone my arguments, or both. Thanks to the extra work you made me do, I'm even going to revise my article. I hope that you'll revise your extreme positions I described earier.

Posted by: Justinian Lane | September 19, 2006 4:19 PM

Justinian, I'm disappointed that you repeatedly misrepresent my positions rather than respond to what I actually say. (Those interested in a comparison of Lane's characterizations of my statements with my actual statements can follow the thread on Overlawyered.) I can only conclude that you have no interest in honest discussion, which is why you can have the last word on this website, and I'll stick to mine in the future.

You're also misrepresenting your own post. You claim that you never said that summary judgments can get attorneys' fees as a matter of course. But the problem with your lie is that it directly contradicts what is in black and white for anyone to read. You said, and I quote, "What if this tool not only dismissed frivolous lawsuits, but could also be used to force the plaintiffs in frivolous lawsuits to pay the attorney fees of the defendant? Wouldn’t such a tool be a better solution than passing laws that would hurt individuals with legitimate lawsuits? This tool not only exists, but has been in use in America since 1937; it’s called the Summary Judgment."

What I've pointed out, and what you're now retreating from, is that your originial claim is false. The summary judgment doesn't dismiss all frivolous lawsuits for any lay definition of frivolous, including your own example of a frivolous lawsuit; and the summary judgment is not a tool by which losing plaintiffs are forced to pay the defense costs of the plaintiff.

Your claim is not just false; it's ironic, because your vision of what summary judgment is (and thus nullifies the need for reform) is what tort reformers have been arguing should be the case. In short, your argument is one for reform, not against it, and your own argument shows it, because you feel the need to misrepresent the status quo as one that meets reformers' ideals, rather than as it actually is.

Finally, you do your cause no good when you argue that any plaintiff with third-degree burns should recover, regardless of the culpability of the defendant. I suppose if I set fire to myself, I can sue the lighter company or stove manufacturer under that view of the world. After all, my kitchen-top doesn't have any warnings that I could incur burns if I set myself on fire. Every sensible judge to confront a case of burns caused by hot coffee spilled by the plaintiff has thrown out the case, even when the burns were third-degree. Why not acknowledge that the system makes mistakes, and that frivolous lawsuits occasionally win at trial when judges fail to apply the law correctly, instead of putting forward the absurd proposition that Stella Liebeck is a worthy plaintiff because she hurt herself really badly by sitting in a puddle of hot coffee for a minute and a half?

Posted by: Ted | September 19, 2006 6:57 PM

For at least the third time, I did not write that the summary judgment always allows for the award of attorneys' fees to the defendant in frivolous lawsuits. I wrote that it "could" be used to do so. By your own admission, it can in fact be used to do so in many jurisdictions.

Hypothetically, let's say I sued you for the made up tort of disagreeing with me and misstating my positions to bolster your own case. In my opinion, such a lawsuit is entirely frivolous and you should not only be entitled to summary judgment, but also to attorneys' fees. I'm sure you would agree with that position.


So we agree that defendants in frivolous lawsuits should be awarded attorneys' fees. Our disagreement is over what exactly constitutes a frivolous lawsuit. You say the current law defines it so narrowly that almost no suit qualifies, and attorneys' fees are "almost never" awarded in those that do. I say you want to define it so broadly that many legitimate suits will be defined as frivolous, and that you would want the award of attorneys' fees to be mandatory.


If either of those changes went into effect, I believe some legitimate lawsuits wouldn't proceed, thus depriving the plaintiff of their right of redress and the public of the public safety benefits of the tort system. I also believe that some innocent plaintiffs would be forced to pay attorneys' fees he or she shouldn't, due either to a biased judge, judicial error, or both. I think that either instance is a case of injustice. Another question you ducked: I offered my definition of a frivolous lawsuit and asked you yours. Care to enlighten me?

Another thought about the McDonald's case. Let's just say that you're 100% right and the trial judge was unsensible when he didn't throw it out. How would tort reform force judges to develop common sense? Think about it: If you're right that the trial judge was wrong, that means that the system is not broken or in need of reform, but only in need of better-qualified judges.

Posted by: Justinian Lane | September 19, 2006 11:04 PM

"For at least the third time, I did not write that the summary judgment always allows for the award of attorneys' fees to the defendant in frivolous lawsuits."

Saying it repeatedly does not make it so. You DID write that, as Ted ALREADY QUOTED TO YOU. If that's not enough for you, then there's no reason to continue discussion.

But hey, I'm too stubborn for my own good, so here's some other points:

"If either of those changes went into effect, I believe some legitimate lawsuits wouldn't proceed, thus depriving the plaintiff of their right of redress and the public of the public safety benefits of the tort system. I also believe that some innocent plaintiffs would be forced to pay attorneys' fees he or she shouldn't, due either to a biased judge, judicial error, or both. I think that either instance is a case of injustice."

Yes, but currently, many suits that AREN'T legitimate inflict court costs on innocent defendents. That is a case of injustice, as well, and it's just as bad as the other, yet you don't even seem to recognize it.

"To me, frivolous means a lawsuit with either no basis in law or fact, or in which the damages are too small to justify wasting the court’s time."

Thn you support tort reform, or you should, as your definition of "frivolous" is one that I wholheartedly agree with, and I suspect that Ted dos as well (or at last, fairly close), and the law is so different from your definition as to be unrecognizable. As we keep pointing out, you are arguing FOR tort reform, not against it.

"Think about it: If you're right that the trial judge was wrong, that means that the system is not broken or in need of reform, but only in need of better-qualified judges."

In this particular case, that may well be, but if that's the case, then ATLA (among others, INCLUDING YOU) should stop DEFENDING the Liebeck decision as good law. Either way (tort reform needed or just a bad judge), the decision itself is still deplorable and undefendable.

Posted by: Deoxy | September 20, 2006 1:28 PM

McCoffee, just the facts:

In 1994, 79 year old Stella Liebeck, sitting in the front passenger seat of a car driven by her grandson ordered coffee at McDonald’s drive through. Her grandson pulled up to the exit and she put the cup between her legs to remove the lid to add sugar and coffee. She spilled all of the coffee on her legs and it soaked into her sweatpants. She screamed in pain but her grandson thought it was just a coffee spill and drove off. When Stella became very nauseous her grandson thought she might be in shock and pulled over. He helped her out of the car, removed her sweatpants and covered her in a blanket. They then went to a hospital that was too crowded and were forced to go to another.


Doctors determined that the coffee had caused 3rd degree burns on her thighs, buttocks, legs, and genitalia, over 6% of her body. She had lesser burns that left permanent scarring over 16% of her body. She was in the hospital for a week and underwent painful skin-grafting procedures. She couldn’t afford to stay longer and left. Her daughter was forced to take off work to take her back to the hospital to continue her treatment.


Stella, a republican who had never filed a lawsuit and didn’t have a lawyer, wrote a letter to McDonald’s admitting the spill was her fault but that the coffee should not have been hot enough to cause her injuries. She asked McDonald’s to check their coffee machine to make sure it wasn’t malfunctioning, reevaluate the temperature standards for coffee, and to pay for her medical care not covered by Medicare. The total amount of her request was between $10,000-$15,000. McDonald’s offered $800.


Stella got a lawyer. The lawyer offered to settle for $90,000 for medical bills and pain and suffering. Again, McDonald’s refused. After trial was set Stella offered to settle for $300,000 and later admitted about half of that would have been accepted. Again, McDonald’s refused. The judge ordered a mediation. The mediator suggested a settlement of $225,000. Again, McDonald’s refused. At trial the following evidence was offered.


McDonald’s Manual: McCoffee to be made at 195-205 degrees

McCoffee to be served at 180-190 degrees


Home Coffee Makers make coffee at 158-168 degrees
Hold coffee at 150-157 degrees


Liquids between 180-190 degrees cause 3rd degree burns in seven seconds which is often longer than spilled coffee can be wiped or clothes removed. 3rd degree burns are serious injuries that penetrate through the full thickness of the skin to the fat, muscle, and bone.


McDonald’s had received over 700 complaints about hot coffee and had paid settlements totaling $750,000.00 some as high as $66,000.00


McDonald’s employee, Christopher Appleton testified that he knew that McDonald’s coffee was so hot it caused burns. He testified if someone were able to get the coffee into their throat they would have third degree burns in their mouth and esophagus. In 1988 Appleton had seen photographs of 3rd degree burns to another woman’s genitalia caused by McCoffee. The burns were unlike any he had ever seen. In the six years since, neither he nor anyone else at McDonald’s had ever attempted to find out the rate of speed for burns or lack of margin of safety of coffee served at 180-190 degrees. Even at trial of the Liebeck case there were no plans at McDonald’s to lower the temperature of their coffee.


He also testified that McCoffee was served that hot because McDonald’s thought people bought coffee at McDonald’s but didn’t drink it until they got to work.


McDonald’s internal studies showed that people drank their coffee as soon as it was purchased and that people eating in the store would not get a refill when coffee was too hot.


McDonald’s makes $1.35 million in profit on coffee everyday.


Stella suggested that the jury award punitive damages in the amount of two days profits to get the attention of someone at McDonald’s so they would lower the temperature of their coffee.


Many jurors before trial felt like they were wasting their time deciding a spilt coffee case. After hearing all the evidence, including the above, some jurors argued for awarding a weeks worth of profits, or $9.6 million. In the end the awarded $160,000 in compensatory damages ($200,000 reduced by 20%, the amount Stella was found to be at fault), and $2.7 million in punitive damages. Once the trial judge found out that McDonald’s reduced the temperature of their coffee he reduced the punitive damage to $480,000. After threats of appeal, a confidential settlement was made.


This case is not funny. The injuries are not funny. The result is not unjust. McDonald’s callous disregard for the injuries to their customers was evident to the jury. People who second guess that determination without the facts are insipid or ignorant. Without this result people would still be getting burned today. It is the development of the products liability doctrine that allows recovery and provides deterrence.

Posted by: Jim Green | September 21, 2006 2:38 PM

Hi Jim,

Thanks for your excellent summary of this case. If you would like to read more about this case, read my post which supports the same conclusion.

Why You Should be Able to Sue McDonald's if You Spill Coffee on Yourself

http://www.tortdeform.com/archives/2006/09/why_you_should_be_able_to_sue.html

Posted by: Cyrus Dugger | September 21, 2006 4:03 PM

Jim Green writes: "People who second guess that determination without the facts are insipid or ignorant." And that certainly is an accurate description of Jim Green's defense of the verdict, which contradicts the facts and the law.

Here's how a sensible court decided the McDonald's coffee case.

Here's how another sensible court decided a case materially identical in facts to the McDonald's coffee case.

I second-guess the determination of the McDonald's case with full knowledge of the facts and, more importantly, the law, as well as of what is good public policy.

Today, every major vendor of coffee serves coffee as hot or hotter than McDonald's did in 1994, and they do so because that's what customers want, even though lawyers try to keep it from them.

Posted by: Ted | September 21, 2006 7:58 PM

Ted, if Liebeck's case was decided contrary to existing law, why should we change the law? As you've said many times, the judge was the problem in the Liebeck case, right?

Hardly evidence of the need to "reform" the law.

Posted by: Justinian Lane | September 22, 2006 10:31 AM

I've never argued that Liebeck v. McDonald's is a reason (much less the sole reason) to change the law (other than the law of punitive damages). I've argued that ATLA's support for the result in Liebeck v. McDonald's demonstrates how off-track the legal system and legal education has gotten, how willing the plaintiffs' bar is to distort facts in their public relations, that it bodes poorly for the nation that the next generation of attorneys is being taught that it is anything other than a ludicrous result, and that it is a poor public-policy use of the liabilty system typical of other attempts by the plaintiffs' bar to deform the tort system, the apparent goal of your blog.

To repeat what I've several times this week: you're the one making a big deal out of the McDonald's coffee case. My case for reform is based on other many many other issues.

There are over 5000 posts on Overlawyered and over 2000 on Point of Law documenting thousands of problematic cases, and the best one you can single out is the most notoriously frivolous? Without yet making a sensible argument for why it was correctly decided? Wow: you found a sloppy reporter who said Liebeck was driving, when it was really her grandson. Why does that change the critical fact, that Liebeck was injured solely because she spilled coffee on herself and incurred the open and obvious danger of injury as a result?

Posted by: Ted | September 22, 2006 5:13 PM

As a medical malpractice victim, who has run the gamut of both our legal system and our political system, it is commentary such as these statements citing the Mcdonald's case as arguemnts for tort reform that instill a cynisim in the capabilites of the American people.
PR on both sides of the issue will indeed spin things their way. It IS up to the intelligent indivual to research fully BOTH sides both making a judgement.
First, misnomer is using this case as a guide for any arguement towards med mal cases. This was a civil case and does not follow even remotely close to a med mal case.
The actual award ( what the plaintiff actually received ) barely covered her medical bills. She was injured to the point of 3rd degree burns and needed skin grafts. So while people may reel when they hear the big money numbers, actually is, the plaintiff's actual awards are miniscule in comparison.
While I could cite much much more, I will end with this.
Nobody, I repeat Nobody, including our government should be playing big brother dictating a court case of which they are not privy to ALL aspects of the case. This is NOT what our court and jury system is intended for. The ideals, while indeed polluted at times, need to be maintianed and held steadfast and not fall victim to over government and businesses profit influences.

Sherry Keller

Posted by: sherry | September 25, 2006 11:21 AM

Jim Green,

Some specific factual things you might want to note:

First, "McCoffee, just the facts". Um, no, what you've spit out here is just SOME of the facts (several of them irrelevant), along with some falshoods.

Much of the information at the top is irrelevant to finding fault, though many readers will actually appreciate knowing "the rest of the story". Many urban legend versions of the story do indeed cast her as the driver, for instance.

"McDonald’s Manual: McCoffee to be made at 195-205 degrees
McCoffee to be served at 180-190 degrees

Home Coffee Makers make coffee at 158-168 degrees
Hold coffee at 150-157 degrees"

No longer entirely true. Higher end home coffee makers now ALSO achieve professional level temperaturs... such as those spcified by McDonald's.

"Liquids between 180-190 degrees cause 3rd degree burns in seven seconds which is often longer than spilled coffee can be wiped or clothes removed."

I'v heard claims of as low as 2 seconds actually, but again, this is irrelevant to finding of fault.

"McDonald’s had received over 700 complaints about hot coffee and had paid settlements totaling $750,000.00 some as high as $66,000.00"

700 complaints is brought out to sound high, yet with as many cups of coffee as McDonald's serves daily (literally millions), and these 700 coming over several years (10, IIRC, though you don't even mention that), that makes their coffee considerably safer than quite a few other commercially available products. This is also an insufficient amount of information to determine if these other cases had other relevant facts - for instance, WHO spilled the coffee. If an employee did it, liability is obvious, and OF COURSE McDonald's would pay. Other possible relevant facts would be cup failure (manufacturer liable), slip-and-fall causing coffee spill, coffee left accessable to minor (and whose fault that was), etc.

"McDonald’s employee, Christopher Appleton testified that he knew that McDonald’s coffee was so hot it caused burns. He testified if someone were able to get the coffee into their throat they would have third degree burns in their mouth and esophagus. In 1988 Appleton had seen photographs of 3rd degree burns to another woman’s genitalia caused by McCoffee. The burns were unlike any he had ever seen. In the six years since, neither he nor anyone else at McDonald’s had ever attempted to find out the rate of speed for burns or lack of margin of safety of coffee served at 180-190 degrees. Even at trial of the Liebeck case there were no plans at McDonald’s to lower the temperature of their coffee."

Um, so what? This is irrelevant, except to vex the emotions. Go to Starbucks (and any other such place)right now and purchase coffee, and it should be, according to their guidelines, at the same temperature as McDonald's coffee was then. What it does to the human body is not relevant to who is at fault. Kitchen knives can cause lacerations! This is the knife maker's fault, of course...

"McDonald’s makes $1.35 million in profit on coffee everyday."

Utterly an completely irrelevant, except possibly to show how many millions of other people manage not to burn themselves.

"This case is not funny. The injuries are not funny."

On this, I think everyone here agrees.

"The result is not unjust."

On this, we completely and utterly disagree. Oh, and that's an opinion, not a fact ("just the facts", remember?).

"McDonald’s callous disregard for the injuries to their customers was evident to the jury."

OK... relevance? They were providing a standard product in a standard way. People will injure themselves, even with perfectly normal products (kitchen knives, for instance). Would it make the jury feel better if the product manufacturer really felt bad about people misusing it's product?

"People who second guess that determination without the facts are insipid or ignorant."

I could possibly agree to that... So, which are you, insipid or ignorant?

"Without this result people would still be getting burned today."

Factually false. All major coffee providers STILL provide thier coffee at 180-190 F (except McDonald's, of course), AND home coffee makers have improvd since then, with many providing similar tempratures at home. This verdict did nothing to alter any of that (with the exception of McDonald's).

"It is the development of the products liability doctrine that allows recovery and provides deterrence."

A proper and just products liability doctrine does that... for the actions of others against you, not of your own actions against yourself.

Singling out McDonald's as providing some kind of uniquely dangerous product, when in fact they were conforming to the industry standard, involves someone making a bold-faced lie. It may well not have been you - you were probably told how very dangerous McDs coffee was and assumed that the person who told was acting in good faith. Unfortunately, it's like beliving that she was the driver, only much more relevant, and therefore, much worse.

Posted by: Deoxy | September 26, 2006 4:11 PM

First, I must apologize for the comments about insipid and ignorance. I first posted those comments in a torts class where my professor ridiculed products liability as the doctrine that permits recovery for hot coffee and batman capes without a warning not to jump of the roof, a case I have yet to find evidence ever was brought. Because he did not discuss the facts and appeared not to even know the facts and because he had a comment board for students I wanted my classmates to be informed of the evidence presented at trial. I didn't mean to imply anyone here was insipid or ignorant and I am not even sure insipid is an accurate descriptor.

Second, I am pretty certain that all of the facts other than Ms. Libeck's political affiliation, the settlement negotiations, and the juror's reluctance were evidence presented at trial. A prerequisite for admissibility is relevance. Deoxy, you may not agree with the judge's determination of what is relevant but that does not make it irrelevant. Relevance is determined by what must be proved. In this case one of the claims was failure to warn. The number of complaints is relevant to whether McDonald's knew should or should have known to issued a warning. At trial a McDonald's executive that the company "had decided not to warn customers about the possibility of severe burns, even though most people wouldn't think it possible." Appleton's testimony was relevant for the same reason. What is irrelevant is what other companies are doing today and what home coffee makers are capable of today. In fact every Starbuck's coffee I buy comes with warnings of the possibility of sever burns both written and oral. The number of prior complaints is also relevant to show McDonald's knew or should have known to issue a warning.

The evidence presented at trial demonstrated to the jury that McDonald's was not operating within industry standards. Perhaps the evidence was wrong but I find it hard to believe that McDonald's lawyers weren't capable of discovering and producing such evidence.

I don't mind disagreement and would prefer to be talking cases that are easier to justify. I do not, however, think that most people intimately familiar with the testimony at trial would find the result as absurd as the media makes it out to be. That is why I mentioned the reluctance of the jurors to hear the case. Perhaps the people on the jury are those in the best position to determine what is just. That I believe is why we have a jury system and I truly hope you would not do away with that.

If I can find the time I will address the cases posted by Ted above. They do present an interesting if not disconcerting alternative.

Posted by: Jim Green | September 27, 2006 8:33 AM

The contingency fee is a collection method, not for the purposes described above. It is not for access to justice for the poor.

Into the 19th Century, the British system of plaintiff lawyer compensation was in effect. Plaintiff wins suit, collects judgment, does not pay legal bill for the hours spent. This happens more often than not. The lawyer devises the contingency fee to get the judgment first, so his bill is paid.

Posted by: Supremacy Claus | September 29, 2006 8:42 AM

Hi Supremacy Clause, I came across an interesting piece which takes issue with your reliance on loser pays as a silver bullet to your concern about the current framework of the civil justice system. I'd like to hear your response. Here's an intro and the link to the full article.

http://www.legalaffairs.org/issues/November-December-2005/argument_kritzer_novdec05.msp

""Loser Pays" Doesn't

When lawsuit losers are forced to pay the legal fees of winners, the cost of litigation for everyone goes up.

By Herbert M. Kritzer

NAOMI CAMPBELL, THE LITHESOME BRITISH SUPERMODEL, has long coveted public attention. She has been less than thrilled, however, with news reports about her substance abuse. In 2001, she filed an invasion of privacy suit against the Daily Mirror, an English newspaper that had published photos of her leaving a Narcotics Anonymous meeting. She won an award of �3,500 plus costs after an initial trial, had the award reversed as a result of an appeal by the Daily Mirror, and last year won reinstatement of the award after she appealed to England's highest court.

The cost of the litigation for both sides was well over �1 million. This is especially significant in England, because, like most other countries, it requires litigation losers to pay the legal fees and expenses of litigation winners. When Campbell won at trial, her lawyer said he would seek �250,000 in costs. When she lost on the Mirror's appeal, Campbell was ordered to pay the newspaper �350,000 in expenses. After ultimately succeeding, Campbell's lawyers this year claimed costs of almost �350,000.

Advocates for reducing litigation in America often tout "loser pays"—or the English rule, as it is sometimes called—as a way to discourage frivolous cases and make the civil justice system fairer and more efficient.

But Campbell's case, extreme as it may be, shows that loser pays can work in ways that its supporters do not intend. Rather than discourage the filing of lawsuits, the system allows plaintiffs like Campbell to press potentially strong cases involving trivial amounts without worrying about the expense. As a result, the policy has helped increase the cost of litigation in Britain and has added another layer—fee disputes—to the process. It has also discouraged settlements. In the United States, where each side typically pays its own costs, decisions about whether to proceed or settle are made in light of anticipated expenses. In a system where the loser pays, a party with a strong case has less incentive to compromise because costs are shifted to the other side. The defendant can no longer cut losses by convincing the plaintiff to weigh the costs of proceeding and accept a discounted settlement."

Posted by: Cyrus Dugger | September 29, 2006 7:21 PM

Hi Deoxy,

While I take issue with other points that you make which we can discuss later, one question is how many people like Stella never even complained when they were hurt. As you know, in many cases, including medical malpractice the rate of people who are injured who actually file suit is incredibly small.

As such your point regarding the fact that 700 is a small number doesn't ring true to me.

I will dig up a recent statistic on the rate of personal injury/product liability suits and we can discuss how many people were actually likely injured by McDonald's coffee.

In addition, whether or not you find the facts germane, and I think Jim does a good job of rebutting your previous point, the larger point is that as to the use of the case as a symbol of a frivolous lawsuit, how even the IRRELAVANT FACTS have been changed matter. It matters because it shows how much people are willing to change the facts to attempt to fit it into the tort "reform" narrative of a legal system that is out of control.

If the facts didn’t have some effect, why did those telling the story change them in the first place, if the changes didn't have some positive effect from the point of view of the person telling them and/or making those changes, why would they bother changing them and or omitting other important facts?

Posted by: Cyrus Dugger | September 29, 2006 7:41 PM

"700 complaints" about the temperature of McDonald's coffee is not "700 lawsuits", "700 claims for compensation", or even "700 people who were seriously burned." I cut myself with a knife and didn't sue the knife-maker for not including a warning (even though surely more than 700 people have cut themselves with knives), and that's the sort of idiotic thing that's included in the PI/PL suit ratio to show people supposedly don't sue enough.

It's also utterly irrelevant. The mechanism for people unhappy with the temperature of McDonald's hot coffee is not to buy hot coffee. McDonald's sells its coffee hot because consumers prefer coffee that's hot. Hot coffee can cause burns, as all hot things can; this is an open and obvious danger, and why people at Dunkin' Donuts, Starbucks, and many other coffee shops have suffered third-degree burns from coffee. It's certainly not a subject for liability when someone spills their own coffee on themselves, much less punitive damages. In fact, as I noted, in Great Britain, a plaintiff can't recover against McDonald's for spilled coffee, even when it's a small child who spilled the coffee on him- or herself, and is thus less culpable than Liebeck was. Let's have an explanation why that court's reasoning is wrong or why Judge Easterbrook was wrong in Bunn-O-Matic before you start complaining about the facts that some small newspaper recited regarding Liebeck.

It matters because it shows how much people are willing to change the facts to attempt to fit it into the tort "reform" narrative of a legal system that is out of control.

All stories repeated multiple times get their facts changed over time. It's the nature of story repetition, and needs no reform conspiracy to do that. There are two relevant features of the story for purposes of reform: (1) Liebeck spilled coffee on herself, blamed McDonald's for her self-inflicted injuries, and a judge let the claim go to a jury instead of throwing it out; (2) a jury issued punitive damages when McDonald's was not culpable in the slightest. Both elements remain consistent throughout the story. One can add a third important element for purposes of reform, that the plaintiffs were allowed to mislead the jury that McDonald's temperature was unusual in any way, that the plaintiffs were allowed to lie and claim that a lower-temperature coffee wouldn't cause burns, or allowed to take multiple depositions until they tricked someone who didn't know what he was talking about into giving a deposition answer that was taken out of context in court, though that isn't usually included in the standard discussions of the story.

Posted by: Ted | September 30, 2006 9:18 AM

Ted, I have a problem with your following statement:
Let's have an explanation why that court's reasoning is wrong or why Judge Easterbrook was wrong in Bunn-O-Matic before you start complaining about the facts that some small newspaper recited regarding Liebeck.
No. Let's make sure that the media reports true and correct facts. If people are to make educated and informed decisions about whether the civil justice system needs to be changed, they need true and correct facts. Do you disagree?


Also, you state that someone's deposition answer was the result of trickery, and taken out of context. Which statement are you referring to?

Posted by: Justinian Lane | September 30, 2006 5:31 PM

Cyrus: I have not advocated loser pays. I have advocated loser pays if a deviation from professional standards of due care is proven. This is straight legal malpractice open to the adverse third party.

I oppose the self-dealt immunity of lawyers, judges, and legislatures. If immunity is a stealthy industrial policy leading to growth, the decrease in the number of lawyers, and of the size of government once immunity is removed, will benefit the lawyer. Your fees will increase because there will be fewer lawyers once subject to legal malpractice by any victim of lawyer carelessness.

If ordinary torts are available to adverse third parties, they may also sue classes of guideline makers, upon which the careless lawyer relied. An example of a guideline maker is the Disciplinary Counsel, the employer of such, the Supreme Court of the State, the Bar, the law schools, the writers of treatises relied upon in real life. I would like to bring class actions to the lawyer profession, and deter it. It is out of control.

Next, reverse Hans by statute. Repeal the 11th Amendment. Finally, deter the Federal Government. These are enemies of the public interest, and solely vehicles for lawyer rent seeking. Make the voter choose between keeping the lawyer in charge and personal bankruptcy through explosive growth in taxes to pay compensation to the victims of the careless government.

I hope you believe enough in the benefits of torts, as I do, to not be a big hypocrite. Why would anyone want to deprive the lawyer profession and its wholly owned subsidiary, the government, of these benefits?

Posted by: Supremacy Claus | September 30, 2006 8:07 PM

The main mistake the media makes about the Stella Liebeck case is that they repeat without criticism the claims of anti-reform advocates that the case has any merit. For example, the August 14, 2005 LA Times, which is the most recent major newspaper story to mention the lawsuit, and an article sloppy enough to merit five separate Overlawyered posts on the one-sided distortions. Media mistakes generally benefit the plaintiffs' bar because the plaintiffs' bar is very effective at packaging illegitimate lawsuits as dramatic David v. Goliath stories that appeal to lazy journalists, even if they have to fake a crash test. So if we're going to talk about media mistakes, let's talk about all media mistakes, and not just the irrelevant technicalities over whether Stella Liebeck was a driver or a passenger.

Justinian, why are you dodging my question? You and Cyrus each wrote lengthy posts on the Liebeck lawsuit, where the judge didn't justify his outrageous decision to let the jury decide that case. So why is Bogle wrong? Why is Bunn-O-Matic wrong? Where's the lengthy post pointing out those decisions and complaining about the results? You must think those decisions unjust if you think Liebeck is anything other than ridiculous.

Posted by: Ted | October 1, 2006 12:24 PM

Ted, it's ironic you dodge my question about which statement you were referring to by accusing me of dodging your question. I'll assume it was just an oversight on your part.


I don't recall having read Bogle, so I can't offer any opinion on it. Got a link to it?


If my memory serves from the discussions we had some time ago (where has the time gone) at Corpreform.com, I supported the Liebeck decision because McDonald's admitted their coffee was unfit for human consumption, and therefore defective.

Posted by: Justinian Lane | October 1, 2006 4:17 PM

McDonald's didn't "admit their coffee was unfit for human consumption."

I linked to Bogle at Overlawyered, and here.

Posted by: Ted | October 1, 2006 10:39 PM

McDonald's did admit that their coffee, at the temperature sold, would cause burns to the esophagus if consumed in less than five minutes after purchase.

I'll look for Bogle.

Posted by: Justinian Lane | October 2, 2006 11:37 AM

"McDonald's did admit that their coffee, at the temperature sold, would cause burns to the esophagus if consumed in less than five minutes after purchase."

I don't know why you insist on playing "Argument Clinic," but this is not true in either particular.

It's also irrelevant. Knife manufacturers know that knives can cut people badly enough to send them to the hospital, and would probably even legitimately admit that in court. It doesn't make the product defective.

Posted by: Ted | October 2, 2006 12:27 PM

"Argument clinic?" What is an argument clinic?


Christopher Appleton did in fact agree that the coffee, at the temperature served, would burn the esophagus unless the customer waited at least five minutes.


A knife would be defective if the handle would cut you unless you waited five minutes from the time you took it out of the drawer to begin cutting with it.

Posted by: Justinian Lane | October 2, 2006 2:35 PM

An admission really isn't necessary when we know:

1)the temperature that the coffee was served at

2)liquids at that temperature will cause third degree burns within minutes.

It's interesting now that the discussion turns to foreseeability. Ted claims that a burn from coffee is as foreseeable to the consumer as is being cut by a knife.

The comparison to a knife just fails.
We can also assume that since even poor old Stella Liebeck should have been able to reasonably foresee her injuries...that a multi-billion dollar international conglomerate could foresee those injuries as well.

Foreseeability alone does not insinuate fault though, which is, I guess, the foundation of the knife analogy. A knife isn't designed for human consumption. A knife, even when used as intended presents dangers that coffee does not. Coffee, at the temerature served, does, did, and will continue to cause injuries even if used exactly as intended.

In fact, the dangers presented by knives are so well know that McD's will only handout plastic ones wrapped in celophane. MAybe they should pay us much attention to their coffee.

Posted by: John | October 2, 2006 4:12 PM

Ah. Justinian changes his story. I merely note that "Christopher Appleton" is not "McDonald's", nor vice versa. That a plaintiffs' lawyer tricked a deponent into saying something that isn't true should have no bearing on whether Liebeck is entitled to recover under the law: at least not if Lane believes that a trial should reflect justice and truth, rather than a game-show contest.

John jumps into the debate and fails to address anything I've already said. Until he can explain why Bogle and McMahon is wrongly decided, I stand by the common-sense view that Liebeck never should have seen a jury.

Posted by: Ted | October 2, 2006 9:28 PM

(sigh) Fine, Ted. Appleton was not McDonald's. He was a representative OF McDonald's, testifying on McDonald's' behalf. You know that's what I meant... or did you think I meant Ronald McDonald himself took the stand in the case?

With respect to your "game show" comment - do you have any suggestions on how to make sure witnessess on either side never make intentional or unintentional errors during deposition or trial? That is, do you have a method to eliminate all human error from the justice system?

Posted by: Justinian Lane | October 2, 2006 10:45 PM

Making "sure witnessess on either side never make intentional or unintentional errors during deposition or trial" is neither necessary nor sufficient to resolve the problem of policy-by-game-show that currently takes place in the judicial system. I discuss this issue regularly at Overlawyered, Point of Law, and AEI, and don't really see the point of repeating it here, since what I do say is never actually addressed.

Posted by: Ted | October 3, 2006 1:46 PM

Ted, witnesses routinely make "mistakes" at the hands of skilled lawyers on the defense and plaintiffs' side. You know there's no way of preventing it.

...what I do say is never actually addressed.

Lately, all you ever say are comments like, "Read overlawyered if you want to know what I say."

Are you too lazy to post links to the content, or are your posts here merely intended to drive traffic to Overlawyered and help Walter sell more books?

Posted by: Justinian Lane | October 3, 2006 1:56 PM

Your solipsism fascinates me, Justinian. I assure you that I have driven far more traffic here from discussing your errors on Overlawyered than goes in the opposite direction from my commenting here. If it were up to Walter, I wouldn't comment here at all, because he correctly points out it's not a good use of my time, and it's a failing of mine that I persist in doing so when the bloggers here have more than proven that they're not interested in real debate.

The laziness is yours: while the reform bloggers keep track of arguments on both sides of the issue and engage opposing arguments, you and Cyrus simply give no indication that you have any idea what it is that reformers are saying; you're simply regurgitating material from an echo chamber, often without even understanding it (as with Dugger's characterization of Pearlstein's editorial arguing that NAM would be more successful if it proposed compromise positions--ignoring that NAM has actually done that, as it did with its support of the failed asbestos bill that would have had taxpayers give $7 billion to trial lawyers). Overlawyered and Point of Law regularly has main-page posts linking to and discussing material written by reform opponents. It hasn't happened here once, despite repeated disingenuous claims of wishing to have a dialogue.

Posted by: Ted | October 3, 2006 3:01 PM

Funny you used the word solipsism; I once described my self as a self-aggrandizing, solipsistic, poor team player. Glad to have you validate my self-assessment.

As for "real debate"? Your idea of real debate seems to be taking a lengthy post (such as this one) and nitpicking one small detail in hopes that you'll cast doubt on the larger premises. This very post, for example, discusses how contingent fees reduce frivolous lawsuits. You've not refuted that. It discusses how bad verdicts are often overturned on appeal. Your own work at Overlawyered and POL have proven that. You haven't touched my assertion that tort reform is financed by corporations who wish to protect their public image from the bad press of lawsuits. No. Instead, you try and engage in misdirection, you turn everything into an opportunity to regale us with your wisdom on why Liebeck was decided improperly, and you duck every question of which a truthful answer might offend your funders.

Again, Ted:

1: Should tort reform protect child molesters and other felons?

2: Would you agree that at least ONE judge is biased in favor of corporate defendants?

3: Would you agree that at least ONE defense attorney or ONE defendant has committed or permitted perjury?

4: Do you disagree that the motives of companies like Philip Morris and the other tort reform funders are to insulate themselves from large jury verdicts and the resulting bad press? Or are you going to regurgitate the party line that the millions of dollars spent to gut the civil justice system are spent to protect consumers from the justice system?

5: Do you disagree that caps on noneconomic damages undervalue stay-at-home parents?

6: Would you care to discuss how much money the insurance industry contributes to politicians... or are you just going to say it's all lawyers?

7: Speaking of lawyer contributions - isn't it true that a great deal of lawyer contributions come from defense counsel and go towards defendant-sympathetic politicians?

8: Why is it acceptable for a company to be forced into bankruptcy for a tort such as IP theft or copyright infringement, but not for selling a product that killed someone?

9: Why are punitive damages necessary to deter torts like IP theft and infringement, but not to deter against the sale of defective products?

10: Why should doctors get a different brand of justice then any other American? Are they better people?

There's ten more serious questions for you to duck.

Posted by: Justinian Lane | October 3, 2006 3:55 PM

Hi Ted,

On that note, it would be nice to see you comments on some of the other posts. I think the few you've focused on have run their course as to helpful debate/discussion.

Posted by: Cyrus Dugger | October 3, 2006 4:10 PM

Hi Ted,

Thanks for your comments on Tort Deform.

Actually, as much as it often annoys me, you sometimes abusive tone on this site is what drives up a lot of traffic. Your tone angers and annoys a lot of people, who then tell their friends, who then read it and get angry and tell others (not so much your links to us)

As you know, neither overlawyered nor pointoflaw.com have many comments on posts (pointoflaw.com because it does not allow comments), in large part because the great majority of the people who post comments there already agree with you.

I think it's great that you come over here.

1) I think it indicates that you take our little operation a lot more seriously then you would have others believe. Until the launch of this blog you didn't really have a spirited counterpoint blog to your point of view, and you're slightly threatened by it, despite your many years of experience. This point is all the more convincing to me in light of the fact that we aren't even a month old and you're always over here attacking our posts.

2) You have really gotten our comments section going, and indeed provide vigorous and impassioned debate. While I doubt we will ever agree about much, it is of course nice to see somebody who really believes in their views fight for them. Admirable at the very least.

Ted... you are of course welcome to come and go as you please, as is Mr. Olson.

The choice is always yours to make.

Posted by: Cyrus Dugger | October 3, 2006 4:15 PM

Ted, I really just meant to comment on the knife analogy. I didn’t intend to question your interpretation of Bogle or McMahon. However, you called me on it and you were right to do so.
You are right, Bogle was not decided incorrectly based on the evidence provided. IN fact, the evidence provided was so poor that the judge never had any true opportunity to make a decision based on the merits.

For those who have not read the case Bogle was actually a fifteen month old child who took a cup of coffee, without the lid, and spilled it over his neck, back and portions of his face causing substantial injury. This case actually was a decision for six total claims including another infant and a few adults who brought identical claims, and McDonalds conceded that all the complainants were burned by a cup of McDonalds coffee and that judgment for one would be judgment for all.

For purposes of this discussion, I will ignore variances between the legal systems of the UK and US and focus on why this case does not prove, in any way, that Liebecks case never should have gone in front of a jury.

For example:
Ss. 21: Mr. Ives, on behalf of the plaintiffs, submitted evidence of the wrong coffee maker. All of the evidence he provided was declared irrelevant by the judge, who, presumably form the counsel for defense, was very knowledgeable about the inner workings of commercial coffee makers
Now, Mr. Ives may have thought that “if you’ve seen one coffee maker you’ve seen them all,” however, this does not excuse the immediate, irreparable damage he did to his own credibility and that of the claim of his clients. From here it only gets worse.

Ss. 23: Mr. Ives offers evidence to prove the desirable temperature as illustrated by consumer polling. Unfortunately, the consumer complainants were from the UK and the consumer poll respondents were from Midwestern and Southeastern U.S. regions. Again, and not unsurprisingly, the judge found this evidence unpersuasive. His exact adjective of the evidence offered was “flimsy.” Never a good sign. Justice Field does not claim that there would be no persuasive issue on this fact, in fact, his specific attack on the discrepancy between location of the consumer survey v. the consumers at issue indicates he would have seriously considered consumer preferences from a more local survey.

As if this is not bad enough, Mr. Ives and there fore the court never address how consumer preferences came into issue. If there was evidence of consumer preferences available, proof of whether or not McDonalds took this into account would indicate whether or not they were in fact serving consumer needs or merely following a dangerous industry custom. Before anyone jumps to the conclusion that McDonalds doesn’t do anything without adequate research into consumer tastes and profitability, let’s not forget that this is the same company who recently printed passages of the Koran on it’s disposable bags.

Ss. 33: “Accordingly, I have no doubt that tea and coffee served at between 55 C and 60 C would not have been acceptable to McDonald's customers.”
Again, based on the evidence presented this is a reasonable conclusion. However, it is a conclusion on which reasonable people could disagree.

Ss. 35-36: Either out of pure frustration with the incompetence of Mr. Ives, or due to the fact that Mr. Ives did a poor job of explaining himself, the reasonable purpose of this evidence is ignored entirely. This evidence could be considered to determine if a lower temp., or longer cooling period could substantially decrease the injury, Justice Field goes so far to point out that Mr. Ives is not a “medical man.” I presume this is an English expression demonstrating the need for expert testimony.
Justice Field specifically cites the lack of evidence regarding any relationship between lower temperatures and lesser injuries and is forced to form his own conclusion. It is clear to me that Ives evidence could reasonably be admitted to suggest that a lower serving temperature would meet the demand for hot coffee while lowering the cooling time and therefore the period of time in which the coffee posed a serious danger. Considering the individual facts of the Bogle case, it is not a wild assumption to believe that a few minutes passed between the time the coffee was poured, taken to a table, the lid removed, and the baby grabbed ahold of it.

Unfortunately, Mr. Ives did not present any of this with corroborating evidence and at this point I would not give him the benefit of the doubt.

Ss. 38: Again a lack of “cogent” evidence supporting a conclusion that 70 degrees would satisfy consumer preferences causes the argument to fail.

I agree. However, the great deal with which Justice Field articulates how the evidence fails to lead to the expected conclusions is indicative of two things:
1) Justice Field does believe that the conclusions could be reasonable
2) Better evidence would have allowed him to make a different decision, if appropriate.

Ss. 42-63: I take no issue with these sections, other than to reiterate my disappointment with the complainants counsel.
There are other substantive issues that I am neglecting to print here. I feel like I have made my point. If there is something I did not mention, for example Ss. 69 regarding the failure to warn, the lack of a drop test, or Justice Fields brief analysis of causation in light of the circumstances that you really want to discuss further please let me know.


In the remainder of the case, Justice Field applies the evidence presented to applicable law. The evidence failed in every respect. The case was poorly argued, and failed with good reason. I do not disagree with the conclusions drawn by Justice Field considering the circumstances, however, Mr. Ives presented him with no alternative.

This case doesn’t prove that the Liebeck case should never have went to trial. This case only proves that sloppy representation creates judicial opinions that can be manipulated to represent things that they don’t.

I hope this response will qualify me for further discussion with you. I can talk about Bunn-o-matic, but I hope you will agree there are better things for us to discuss.

Posted by: john | October 3, 2006 11:44 PM

Tort reform harms from little Titus Alabama to Houston Texas like a plague or contagious cancer effecting homeowners.

All other platforms pale when you are responsible for making so many of us homeless.

I have written the president 2 letters, 348 emails and sent 76 faxes.. before we lost our homes with many of our neighbors and no one even bothered to answer,

We have filed over 12,000 claims to the Attorney Generals office, just in TEXAS and the AG nor the DA have chosen to take action. We ... and all our neighbors and all the people in Texas that read the national articles about what is happening to us will take action on voting day.

Tort reform has destroyed our families doubled our foreclosure rate and look at the bankruptcies....We can tell you what is wrong with the economy you have destroyed our credit ratings and made us homeless. And we, the middle class are being destroyed.

Arbitration From the prefix ar- to arrive and traitor-to betray anothers trust

My husband and I are still in the arbitration process. We have been having depositions, preparing documents, time lines...many going back to April of 2002, and getting all ready for discovery. It is a monumental task. As the builder and AAA, the American Arbitration Association know. It is also cost prohibitive ... no matter what kind of spin they try to put on arbitration ...as being cheaper than court, my husband and I write the checks we know better.

This is why most new home owners with defective houses, repair their own homes ... even though they have warranty papers, (slick booklets that are enclosed in the decorative folder they are handed in exchange for their check).

If their defects are extensive they are forced into foreclosure and many into bankruptcy.
(Houston's foreclosures have more than doubled in one year and the numbers are not accurate.)

Arbitration: Is the privatization of the "justice" system that is the protection of bad builders.It assists shoddy builders, with bulging pockets, preying on the public. It is easy to see why all the adds, for new homes and the multitude of thrown up housing is so rampant. There is no protection for the purchaser. You are paying for eye candy, these houses will never make the historical register.

So far we have paid over $10,000 dollars in arbitration costs for the privilege of being made homeless in Houston, and this is just the beginning. New home buyers are surpose to buy and shut up. And you had better shut up or under the new laws you are considered a "dispute" and will be dealt with accordingly by the builders, their lawyers and if necessary the Arbitration process.

The Process You are not going to be a repeat offender in AAA. You will be broke after one visit. The builders will be back . Now, ask yourself ... if you were an arbitrator would you rule against your continuous meal ticket or against one poor homeowner who will probably never be able to afford another home in their lifetime? Do you think if perhaps the arbitrator ruled in favor of a new homeowner that they would be chosen by the builder as an arbitrator ever again? Do you know that law firms like the one defending my builder have a AAA arbitrator in the firm. Do you think if you go to AAA and get our builder's AAA arbitrator.... he will rule against his biggest client and in YOUR favor? These are just thoughts I ponder.

Tort Reform My husband and are seeing how tort reform really works, up close and personal. I refer to tort reform as the deformed privatization of the justice system. The system that continues to favor big business. We the people, are forced to conform and be the collateral damage of tort reform. Big builders employ big law firms, pricey lawyers, lawyers the majority of us could never afford. Lawyers that have become proficient in this tort refrom/arbitration process....because they get so much practice.

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Protection for the homebuyers There is no protection for the homebuyers. If he buys a defective home with a bad roofs, water intrusion, buckling floors, leaking windows installed upside down, mold, pluming that is not connected or cracked foundations it is truly a buyer beware market and a buyer be dammed situation.

No one will help you. You will however be referred , referred to an unbelievable anomaly of acronyms. Acronyms that have tried this one woman's' soul: DTPA, AAA, BBB, TRCC, SIRP, RCLA, the DA, and the AG.
After none of these abbreviations help you, you are told to go to your city council, the mayor, to Austin, to the legislature, your representatives, your senators and your congressmen and congresswomen.
Lewis Carol's imaginary rabbit hole. Everyone passes the buck, and it is your buck.

Not one of these agencies or representatives will take action, give you a straight answer or guidance ... they will however pat you on the head and give you a raft of papers to occupy your time. They will also provide you with a list of the fees for their non services and insincerity and send you some where else. I was even sent to the health department and they were the nicest of all. They at least offered to find us temporary housing.

We were filed on in arbitration last year by a notoriously bad builder Tremont/Stature. After 8 months we were dismissed ... only to find out we still had not earned our seventh amendment rights back ... and still did not have the right to sue. We were compelled back into arbitration, again ...and back in arbitration is where we find ourselves today. Even with the over whelming evidence in our own builders words of his admitted fraud the burden of proof is on us.

The date for the culmination of this cunning, criminal activity will be September 21.2006. For your information and possible education I hope you will follow our case. If you are planning to buy a new home in Houston realize you may be the next victim. Our numbers are increasing at an alarming rate.

In a case pending in the courts #2003-16820... Stature Construction Company, our builder's CEO, Jorge L. Casimiro states, under oath about our subdivision Hydepark

"project damage includes roofing systems...resulting in water damage,penetration to interior of the units, the interior units damage includes sheet rock, insulation, wall studding, electrical wiring and boxes, pluming, A/C duck work, flooring...both hard wood and carpet and interior painting."

Yet, unbelievable as it sounds ... the burden of proof is on us, the homebuyers ... and at our expense. We have to prove what the builder has already admitted and has documented expert testimony.

( Mr. Casimiro is on the Harris County Housing Authority to assist with the building of homes for the poor and the elderly) He was appointed by long time friend Judge Robert Eckels. Judge Eckels is aware of Mr. Casimiro's continued transgressions.)

The city of Houston inspected these houses? Are these inspections like drive-bys? We are senior citizens we wanted to buy a new home so we wouldn't be bothered with repairs things wearing out, breaking.and constant upkeep. We could never have imagined the first night in our new home, when my husband pulled the drain in our new garden Jacuzzi tub, that 100 gallons of water would come crashing though our dining room ceiling and flood the living room and dinning room then seep though the hardwood floors and flood the garage below. We had no way of knowing this was just previews of coming attractions...for the next 29 months.

Everyone wants their own home. We are senior citizens and we earned ours. My husband is seventy-one years old. We continue to live in an apartment. Our things are in storage while we continue to spend our days tormented by the same people who made us homeless.

Jordan Fogal 713-802-9727
3003 Memorial Court Apt #2407
Houston, Texas 77007
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Please google my name, Jordan Fogal for national articles and media written on the travesty of justice occurring in Houston. Thank you.

Posted by: Jordan Fogal | October 4, 2006 2:47 PM