Suing Satan; the Devil’s in the Details

Back in the ‘70s there was a saying that became popular: “the devil made me do it.” Now that’s what I call going after the source, the real cause of the problem. These days we just go after symptoms–alcohol, tobacco, video game violence, obesity, etc. But back in 1971, Mr. Mayo wasn’t distracted with whatever form Satan may take from time to time. He sued the Devil.

And he didn’t pull any punches, either. Mr. Mayo claimed that Satan and Co., on numerous occasions, caused him misery, made unwarranted threats, placed deliberate obstacles in his path, and caused his downfall. By reason of those acts, Satan had deprived Mr. Mayo of his constitutional rights. The guy even asked the Court to make the case a class action! Talk about looking out for others.

Unfortunately, though, in the context of formal litigation a certain process must be followed before the substance of someone’s complaint can be addressed. For example, to begin a lawsuit the “plaintiff” must write down the problem, title the document with the name of the case, identify the various parties and tell how they can be notified of the fact that they’re being sued. When the “defendant” gets notice of the case, they must file an answer within a certain amount of time.

Suing the Devil obviously raises far more procedural issues than substantive ones. First, how to caption the case? Mr. Mayo chose “Mayo v. Satan and His Staff.” Second, how does one notify Satan of the case, and require him to appear and file an answer? No one seemed to have a clue. The unlucky judge assigned to hear this case also wondered how the court could ever obtain personal jurisdiction over Satan anyway, the power to make Satan obey the decision of the Court.

And so, with no way to bridge the gap from the physical to the spiritual world, the judge dismissed the case, and did so without even being asked to dismiss it by anyone. Think this is made up? The decision is reported at “Mayo v. Satan and His Staff,” 54 F.R.D. 282(1971). What a spectacle it would be, though, if someone ever successfully put Satan on trial.

A Whole View at the local Whole Foods

Whole Foods supermarket. That trendy, somewhat hippie garden of organic and all that’s “good for you.” One of their stores is in Santa Fe, New Mexico. One day, a male customer visited the store wearing white cycling shorts. Per the design of said shorts, he was going commando. There are many problems with white cycling shorts-they are see–through. Apparently it was the “whole view” at Whole Foods.

Now, my wife and I are avid cyclists, and we wear cycling shorts. You would too if you climbed on a seat like those on our bikes. Let me assure you all of our shorts are black. Why? Because black cycling shorts are not see-through. The lighter the color, the more “at risk” you are. Trust me. We ride rallies every year with thousands of cyclists, often including the Hotter ‘N Hell in Wichita Falls, Texas, the last Saturday of August. And the idea of wearing any sort of underwear with cycling shorts is scarier than not wearing underwear. The manufacturers know this and usually compensate for it. But I digress.

Four female employees of Whole Foods immediately complained to the Whole Foods store manager. The manager did nothing to remove the cyclist from the store. Surprised? Here’s the kicker: these employees sued Whole Foods because of it. Did I mention they were all fired before they sued?

They claimed the store provided negligent supervision by allowing the cyclist to remain, and that the store fostered an environment of discrimination and sexual harassment by allowing customers to walk around in too-thin clothing. This, they alleged, caused them emotional distress. And one of the employees claimed she suffered post-traumatic stress syndrome for having to deal with the see–through cyclist without the manager’s help.

Unfortunately, the judge actually let this case get to a jury. It took 8 days to try, which had to cost Whole Foods many tens of thousands of Whole Dollars. And after all the hullabaloo, the jury didn’t buy the gals’ arguments. Their case was more transparent than the shorts.

Bottom line, no pun intended? Employers do not have a duty to evaluate customers’ fashion statements and cover the eyes of adult employees who may object.

Lawyer Watches His Future Nearly Go Up in Smoke

Pity the poor Zachary Sanders of Portland, Oregon. Or maybe the residents of the State of New York. Somewhere along the way, Sanders decided to be a lawyer when he grew up. For good or bad, he certainly gave himself enough opportunities to practice his skills of argument as he aged.

When he was only 14, he was picked up for violating curfew. He claimed he was stopped because his companion was black, that the stop was all about police racism. Never mind that the police were right about his curfew violation.

In high school, he helped teach Hispanic immigrants the English language, but he was dropped from the program after tutoring a female student outside of class. His explanation? “I didn’t know until later that the girl considered me her boyfriend.” How conveeeeen-ient.

In college, he was charged with carrying an open container of alcohol, leading to a fine. His explanation? It was just a “boda bag” and he didn’t think it constituted an “open container” under the statute.

After graduating from college, he lived in Queretaro, Mexico, where he was a part-time English teacher. In May of 1998, while living in Mexico, he made a trip to Cuba, returning by way of the Bahamas. Problem was, while in Cuba, Sanders bought a box of Cuban cigars, clear evidence that he was there. Bigger problem–U.S. Customs decided he was “it” for a random bag search, and found the cigars. And his biggest problem of that trip? Lying about his whereabouts until confronted with the tobacco.

And the government wasn’t through with Mr. Sanders, either. The U.S. Dept. of Treasury sent Sanders a letter requesting additional information about this trip. Ignoring the letter, Treasury fined Sanders $10,000, a fine he didn’t bother making any attempt to pay.

Fulfilling his life long dream, in August of 1988 Sanders began law school. But failing to learn from history, he doomed himself to repeat it. Yes, I mean to tell you that he tripped out to Cuba again in 2000, between law school year 2 and year 3. This time he toured via Canada. And again he was searched on the way back in, where a box of Cuban cigars were found. At least he was consistent, because he again denied going to Cuba until confronted with the loot. This time, he was fined $100 on the spot.

In July of 2001, he sat for–and passed–the New Jersey bar exam. While you may think he had now gotten the Cuba thing out of his system, or at least had gotten the law fined into his system, not so for the clever Mr. Sanders. No, in August of 2001, he made a third fateful trip to that fair Island paradise of Cuba. The difference was this time he didn’t contribute as much to the gross domestic product of Cuba, failing to bring any cigars back home.

Now, passing the bar exam is only one component of what is required to obtain a license to practice law. For example, candidates have to be fingerprinted and have the prints run by law enforcement. And in New Jersey, candidates also have to somehow “prove” they possess a particularly acceptable moral character.

Hence the problem for the young Mr. Sanders, who now had to explain all of the above incidences away in order to “prove” he was now worthy of a law license, or somehow convince the Committee on Character that he was now a different person, along with the requisite amount of remorse. “I messed up, I’m sorry, I won’t do it again.” How hard could that be?

Impossible, as it turns out. Rejecting the opportunity to hire counsel to represent him, and thus representing himself, here are his own words:

In my estimation, being a lawyer does not mean blindly following unjust and immoral laws…A healthy respect for the rule of law, and one’s duty to comply with it as an officer of the Court, does not prevent one from engaging in civil disobedience.

“Civil disobedience”? Yep, that was the best explanation he could come up with for those trips to Cuba. Well, that plus his “sincere desire to see a country which has chosen to organize itself around socialist principles first hand.” Proof positive all over again that he who represents himself has a fool for a client. And up in cigar smoke went his chances to obtain a license to practice law in New Jersey as they denied his application.

What was Mr. Sanders to do? Where could he go and foist his obvious talent for argument on an unsuspecting public? New York, baby, yeah! He not only passed the New York bar exam in the same year he passed the New Jersey exam, he also satisfied all other New York requirements to get his law license.

Do You Have “Personal Responsibility Bias”?

Leave it up to the trial lawyers to somehow make feeling personally responsible for one’s own actions a bad thing. They have attached the not-so-nice moniker “personal responsibility bias” to this phenomenon. A person affected with personal responsibility bias has traditional family values, strong religious beliefs, and a keen sense of personal responsibility. They tend to see the world with bright line rules on how people should act. They think people should be self-reliant, responsible, and self-disciplined. They understand that when people act irresponsibly and are not self-disciplined, there are consequences.

So what’s so wrong with that? Well, people who suffer from “personal responsibility bias” hold others accountable for their conduct. They let them “suffer” the consequences of their actions. My Mom called these “logical consequences” and they were often punctuated with corporal punishment. But for trial lawyers trying to play the “blame game” on behalf of their wounded plaintiffs (whether emotionally, physically, or economically), these are the last people they want on the jury. In fact, a jury full of people with personal responsibility bias won’t let plaintiff’s’ lawyers play the “blame game.”

To increase their chances of success, the American Trial Lawyers Association (or “ATLA”) began marketing and selling a handbook to their members, written by David A. Wenner, for a whopping $800.00. The point of the handbook is to help trial lawyers identify people with “personal responsibility bias” so they can keep them from serving on the jury.

For you business owners, this is just another example of the forces aligned to attack your success. They are well organized, and have sufficient funding. How do you combat them? What is your defense?

First, identify people, by name or class, who have the opportunity to attack you via a plaintiff’s lawyer. Employees, consumers, customers, partners, spouses of partners, suppliers, tenants, landlords, competitors, all may have the opportunity to attack.

Next, watch the forms and written documents you use with each class of people. Have them reviewed and modified regularly.

Third, take steps to protect your hard-earned assets from any and all creditors. This must be done before there is any specific threat.

Fourth and finally, start implementing your defense now.

Some Lawyers are More Expensive Than Others

I’m a huge fan of auto racing. I was lucky enough to grow up in the Southeast way before NASCAR was cool. My Dad was a preacher, and one of the deacons at his church as a wholesale car dealer. One of the local dealer’s sons was a NASCAR Winston Cup series driver, so I got to tour around with his racing team, to small tracks they don’t visit anymore. Every year in mid May NASCAR runs a special non-points race at Charlotte Motor Speedway in North Carolina. Back in the day it was called “The Winston”, and I still call it that because I’m getting old and cranky, and newfangled titles just don’t appeal to me anymore.

Several years ago, in Dale Earnhart, Jr.’s rookie season, Junior won his first Cup race here at Texas Motor Speedway (I was there), and then won the 16th running of The Winston, which had a purse of $2 million for just that one race. He’s the only driver to ever win the event as a rookie.

Unfortunately, all did not end well for everyone that night, for as some fans began crossing a pedestrian bridge on their way back to what can be described as “elaborate ritualistic tailgating ceremonies,” an 80 foot section of the 320-foot bridge collapsed and fell 17 feet onto the highway below, injuring 107 fans, 48 seriously, including the Taylor family from Virginia. Apparently, the 11 cables buried in the concrete were all corroded, at least contributing to the collapse.

The Taylors–Cindy, Marty and their son–filed suit against Charlotte Motor Speedway and the walkway’s builder, Tindall Corp. In 2003, the Taylors’ case finally went to trial–and lasted for 10 weeks. During that time, the plaintiffs lawyers racked up a total of $355,373.85 in actual expenses for food, traveling and lodging. Yes, that’s right–they actually paid $35,537.38 per week for 10 weeks. And since they won a $4+ million jury verdict, the plaintiff’s lawyers asked the court to award them an extra $355,373.85 (that’s nearly a 10 percent increase) to pay these costs.

Now I’m sure we all understand that a jury trial is stressful, and the major actors in the melodrama, the lawyers, need to be decently taken care of. But how in the world can anybody rack up those sorts of expenses? Obviously, there’s “decent” and then there’s “decadent.”

Well, to start, the plaintiffs’ lawyers were from Greenville, North Carolina, while the trial was in Charlotte, which cost $21,974.42 in travel alone. Adding significantly to the bottom line, more than $17,600 came from meals, several of which cost more than $200 at some of Charlotte’s swankiest restaurants, including:

Jan. 16, Mimosa Grill $493.92
Jan. 18, Mimosa Grill $271.11
Jan. 20, Carlo’s Italian Grill $242.28
Jan. 21, Bistro 100 $259.89
Jan. 22, Carlo’s Italian Grill $247.52
Jan. 23, Bistro 100 $216.33
Feb. 6, Bistro 100 $457.48
March 8, Mimosa Grill $288.28
March 13, Bistro 100 $212.97
March 17, Bistro 100 $454.50 (an early celebration, perhaps?)
March 20, Morton’s of Chicago $248.33

And of course these lawyers couldn’t just stay at your local Holiday Inn. They needed the best hotels in the city for their troubles and to ease their heavy burdens. Then there were private airplane costs at over $17,500, and $72,7556.81 in expert witness fees…….and on and on.

Tindall’s lawyer, who also had to travel back and forth from Greensboro and did so on less than $7,000, was “stunned” when he got the $355,000 request. And he did the only thing he could do. He fought it. The judge took the matter under advisement on a Tuesday, and issued his ruling the following Friday, May 3, 2003. The plaintiffs lawyers only got a whopping $21,475.13 of their expenses awarded, a mere 6% of what they requested. The award included some expert witness fees, and the $208.46 in filing fees. That’s…..about…..it.

Turns out these lawyers may have gambled with at least some of their own money. The plaintiff’s family will still probably have to pay at least some of the costs not awarded. After all, someone must pay for the decadence, and why should the ones who had control over incurring them have to carry this burden? Their lead attorney is on record as saying he would work out a “fair arrangement” with them, of course consider this from the lawyer who just won, probably, 40% of the Taylors’ $4 million judgment, or somewhere around $1.6 million. I guess that’s just not enough. At least both the plaintiffs and their lawyers have plenty of money to play with, but is it any wonder why Plaintiffs lawyers are often vilified by the public?

Maybe we should add to the rules of civil procedure a“mitigation of damages” requirement on the lawyers to help solve this expense problem. In the meantime, it’s just one more reason for you business owners to protect yourselves from lawsuits and all the unpredictable, tangential costs involved with them, including decadent plaintiffs lawyers.

Silver Bullets

Get involved in a lawsuit or administrative action of any sort, and one of the first things you will be educated about is “discovery”. This one, three syllable word describes what is usually the second-most expensive part of lawsuits, second only to the trial itself. And sometimes discovery can be even more expensive than trial. Why do lawyers like discovery so much? Well, in many cases we hold this secret hope that we will find the silver bullet. Here are a few true stories submitted by lawyers and reported in the American Bar Journal that illustrate just how valuable discovery can be:

Story No. 1. The Delaying Insurance Co. Wife sued insurance company for refusing to pay on deceased Husband’s life insurance policies, claiming Husband committed suicide. Wife’s lawyer asked for the Company’s entire investigative file. Whoever copied the file first made copies, then marked out selected sentences with a black marker, and mailed those blacked out docs. As you may know, when you do it this way, the reader can still read what’s been marked out. And what was marked out in this case was a sentence from the in-house counsel to the claims manager, suggesting that the Company delay payment based on a claim of suicide, “even though there’s not really evidence of it.” When brought to the Company’s attention, it paid up on the policy the very next week. Moral to the story: when blacking out text, make a copy of the document, black out the text, copy the document with blacked out text, and send the copy.

Story No. 2. Determined Traffic Cop. Defendant was driving at night, and got pulled over for a defective headlight. Defense Lawyer got the radio broadcast tape of the arrest. Officer A and Officer B, in separate cars but both with a view of the Defendant’s car, had this most helpful exchange just prior to the arrest:

Officer A: “I’m going to stop him, the headlight’s out.”

Officer B: “No, it isn’t.”

Oops. Not exactly video of Rodney King, but much more effective. And less violent.

Story No. 3. Star Witness. Law student intern with the San Diego Public Defender’s Office called a law enforcement agency outside San Diego to get some information on the prosecution’s “star witness.” The detective answered the phone, asked him to hold, placed the phone down on the desk without hitting the “hold” or even “mute” button, and yelled across the room to another detective to ask if Star Witness’s name was familiar. In yet another “priceless” Mastercard moment, the reply was “Oh yeah, that’s the guy who skipped town because of that murder warrant.” And Star Witness quickly became Apprehended Witness, never taking the stand for the prosecution.

Story No. 4. Delete What You Delete. Defendant denied under oath three times that he had represented himself to be a CPA. So Plaintiff’s lawyer showed Mr. Bogus CPA three deleted resumes with cover letters enclosing them, all claiming he WAS a CPA. The electronic versions of these docs were found in the “deleted” files of his computer hard drive. “Delete” does not always mean “deleted.” These days this stuff is tip of the iceberg; imagine an opposing party going through all of your deleted Emails and Internet browser history……

Story No. 5. Jailhouse Rock. Plaintiff claimed extensive injuries and ongoing health problems caused by a car wreck, plus a huge amount of lost wages. He went for it all: brain damage, post-traumatic stress disorder, anxiety, panic attacks, neck injuries, and asthma. Ever known a car wreck to cause asthma? Me neither. Suspicious Defense Lawyer ran a search of county, state and federal criminal histories, and found that the Plaintiff had been doing the Jailhouse Rock in Club Fed for the last 8 years. So much for lost wages. Then, his prison medical records contained all of his complaints–except, of course, brain damage, although the records did document a long history of drug abuse. So much for any chance of recovery.

Conclusion

So there you have it, five fantastic stories about the value of discovery. So the next time your lawyer mentions discovery, help them figure out what to ask for, and hope for a miraculous silver bullet.