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Posts by Bob

Those Frivolous Juries and Outrageous Jury Verdicts

     Several years ago, many of us, including a good number of Phoenix personal injury lawyers, read with shock about a woman who poured coffee on herself and collected millions. Some people were outraged and, for many of those, even an understanding of the facts would make little difference. They have made up their mind that we are a litigious society and plaintiff’s injury lawyers are lurking around every dark corner waiting to take advantage of someone involved in some sort of a mishap, whether they were injured were not.

     That is a subject for a different day. For now, I want to offer my thoughts on what many perceive to be a frivolous jury system that hands out money freely and willingly without considering the merits of a case. In the coffee case, styled Liebeck v. McDonalds, Ms. Liebeck and her grandson, Chris, went through the drive-through at a local McDonald’s and ordered, among other things, a cup of coffee for herself. She received her coffee along with creamer and sweetener. As McDonald’s could reasonably foresee, Ms. Liebeck braced the cup of coffee with her legs and proceeded to remove the lid to add the cream and sweetener. As she removed the lid, coffee spilled and caused second- and third-degree burns across her buttocks, thighs, and labia. Over $20,000 in medical bills later, Ms. Liebeck was left with significant scarring and disfigurement. She asked McDonald’s to cover her medical bills and nothing more. When McDonald’s refused, Ms. Liebeck sued.

     Before a case ever gets to trial, the parties engage in discovery and disclosure. This is where each side can learn what the other side’s claims and defenses are. Lacking the resources of McDonald’s, Ms. Liebeck had to turn to a lawyer who would both wait to be paid (and then to be paid only if she won) and pay, out of his or her own pocket, the costs of discovery and disclosure, just as a Phoenix personal injury lawyer would do. Depending on the size of the case, the costs of discovery and disclosure can exceed $100,000; this is pocket change to McDonald’s but more money than Ms. Liebeck would ever have available if she were required to pay her own way in her lawsuit.

     During discovery and disclosure, Ms. Liebeck and her legal team learned that the temperature of the McDonald’s coffee when it was given to the consumer was 40° to 50° hotter than that fit for human consumption. Please don’t get me wrong, McDonald’s makes a very good cup of coffee. I have found that I do need to let it cool for an inordinate amount of time before I can begin drinking it. The problem with giving a consumer coffee at such extreme temperatures is the consumer can suffer severe burns, as Ms. Liebeck did, if the coffee touches the skin. Discovery also showed that McDonald’s had received more than 700 previous reports of injury from its coffee, including reports of third-degree burns, and had paid settlements in some cases. A reasonable corporation would conclude that it needed to lower the temperature of the coffee served to the public as this is a safety issue.

     The law requires all of us to reasonably foresee the consequences of our actions. Since almost anyone who ever drank a liquid of any nature from a cup, glass, or other container (that’s all of us) has spilled a liquid on him or herself, it is reasonably foreseeable that someone served a cup of coffee, regardless of the temperature, could spill it on him or herself. It is reasonable for a restaurant that serves coffee with creamer and sweetener to be added to the coffee through a drive-through window to foresee that a consumer will brace the coffee between his or her legs, remove the lid and spill coffee on him or herself while adding the creamer or sweetener.

     After selling Ms. Liebeck a cup of coffee that it knew was 40° to 50° hotter than what she could have consumed, it was reasonable for McDonald’s to foresee that as Ms. Liebeck braced the coffee between her legs to remove the lid and add creamer or sweetener she could spill coffee on her legs and, given its extreme temperature, suffer severe burns and personal injuries.

     The case the jury heard was not the same case that most of us read about. The case the jury heard was about a company that disregarded prior warnings and sanctions, disregarded the welfare of its customers, and served a product that was not fit for human consumption knowing or (as a Phoenix personal injury lawyer would say) having reason to know that the consumer could suffer serious personal injuries from using the product in its intended manner. That jury took its duties responsibly and told McDonald’s to pay the medical bills along with an appropriate amount for Ms. Liebeck’s personal injuries and a large amount for punitive damages.

     Punitive damages are intended to punish the wrongdoer. Punitive damages are not available in most injury cases. Punitive damages were available here largely because McDonald’s not only should have known independently it was serving a product too hot to consume but was warned and had paid previous settlements for serving that product at that temperature. In the end, a jury awarded Ms. Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20% at fault for the spill. The jury also awarded Ms. Liebeck $2.7 million in punitive damages. But that wasn’t the end of the case; McDonald’s appealed and by the time of the appeals were over, the Judge reduced the punitive award to $480,000 — or three times compensatory damages. The exact amount of the final settlement is unknown.

     That the appellate courts reduced the jury’s verdict does not support the notion that jurors are frivolous and that jury verdicts are outrageous. Jurors are everyday people who work hard to provide for themselves and their families and give their time to fulfill one of the most important of civic duties-jury service. Any of you reading this may receive a jury summons in tomorrow’s mail. If you do, I hope you have an opportunity to take part in this important function. I know you will discharge your duties as responsibly and carefully as did the Liebeck jurors. Being a part of the jury process along with Phoenix personal injury lawyers and defense lawyers will leave you with a better understanding of how this process works and the satisfaction of having helped achieve justice for the parties.

What Are We Doing and Why Are We Doing It?

In a very compelling blog post, “What’s it for?,” Seth Godin brings us face-to-face with the reality that profits are the main force behind most of our professional endeavors. Seth compares the (likely) original motivation behind Time Magazine- to deliver the best weekly newsmagazine- with current thinking, where the main goal is most likely to make as much money as possible. As Seth points out, profit used to enable the goal, now profits are the goal.

If we think about it, profit is important. Without it we can’t even maintain let alone improve our standard of living. Product manufacturers can’t improve their products, health care providers can’t improve on the delivery of health care and, yes, magazines can’t improve their content without profit. Regrettably, it does appear that offering the best quality and sincerest product is no longer the main driving force of today’s companies.

We do not have to dig too deeply into the popular social press to identify the one profession many see as the greediest – lawyers. Perhaps we can even narrow that further to personal injury lawyers with their “excessive” contingency fee awards. It is certainly true that lawyers, like everyone else, have to make a living and want to get ahead. It is also true that a great many lawyers earn incomes and maintain standards of living few could even dream of, let alone achieve.

I must admit that I too became a lawyer because I wanted to earn a good income and get ahead. However, I can honestly say that my primary goal in choosing this profession is the same today as it was in 1977, to find reward in helping people and being challenged by my work.

That brings us back to Seth’s reality facing question: what are we doing and why are we doing it? If the answer is merely to make a profit, you may earn a significant profit only to realize in the last analysis that you have experienced little, if any, satisfaction from your work. If the answer, on the other hand, is to provide a solution to problems big or small, to be the very best maker of quality widgets, or to heal and save lives, you must also expect your efforts to be profitable lest you be unable to achieve your purpose. Without the profit, you will never attain your goal, but if you follow your dreams, the profits should follow you.

Since I brought it up, I should talk a bit more about how personal injury lawyers are typically paid: the contingency fee. First, a contingency fee enables a person who has been injured a way to redress that injury. It is often called the poor man’s key to the courthouse. When one reads about a multimillion dollar jury verdict and the multimillion dollar contingency fee paid to the attorney, one often reacts with shock and, occasionally, outrage.

It is important to note that multimillion dollar jury verdicts make the news because they are rare. A multimillion dollar jury verdict is the result of years of hard work by a legal team (not just a single lawyer) and, I dare say without exception, the law firm pays all costs out of its own pocket to prepare for that case; the costs can exceed six figures in a case of this magnitude. The verdict, being years in the making, came about because a lawyer was willing to take the risk and, perhaps, forego other cases where payment was assured or could be realized much more quickly.

For every multimillion dollar verdict, there is at least one case that did not turn out as expected; where the legal efforts and the advanced costs resulted in no recovery. In fact, I would be willing to wager that if you compare the contingency fee to the bill for the defense attorney at the going hourly rate for a multimillion dollar case, the compensation of the two attorneys would be very close.

I decided to be a personal injury lawyer because I love the work I do; I am rewarded every time I’m able to help someone through a difficult time like being injured in a car accident. My name is Bob Clarke and I’m a Phoenix personal injury lawyer and my goal is to give you my very best.

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The Personal Side of Lawyering

A lawyer’s job is to help the client. It may be by preparing a simple will or by representing the client in complex commercial litigation. Obviously, whatever the task, the lawyer must know the law and apply the law to achieve the appropriate result for his client. If the client knows that the lawyer knows the law and how to use it for the client’s benefit, the client’s confidence in the lawyer is confirmed. As a lawyer much wiser than me often said, however, the client does not care what you know until he or she knows that you care.

At Clarke Law Offices it has been my honor to represent people who have experienced catastrophic losses. Whether it is a parent who has lost a child or person who has lost the ability to function normally and handle activities of daily living, my clients have needed and deserved much more than my legal knowledge. While I fall far short of being a counselor, therapist, social worker, or intimate friend, I have always felt it part of my duty and a source of my greatest reward to listen deeply to my clients and try to understand that their case is about much more than liability and the appropriate legal measure of damages. My clients have suffered tremendous personal losses and they need me to be able to relate to them with an understanding of those losses.

This starts, of course, with listening. There will be plenty of time to tell the client what I know about wrongful death litigation, suing a doctor or other professional, and how we will put the damages case together. Listening isn’t just being quiet and thinking about who I am going to sue and when while my client is talking; listening is being quiet and paying attention to my client’s words. Sometimes it is best to just listen, don’t take notes-just listen. I am not afraid to ask the client to clarify a point; nor am I afraid to offer my sympathies and understanding of their circumstance.

This is not an exact science and I am not a perfect practitioner. Over the years, however, some of the greatest compliments I received from clients are that they knew I cared. Knowing as much as I can about the personal impact of my clients’ losses has strengthened my commitment to work my hardest for my client.

As I have said countless times, I truly hope none of you ever need my services; that would mean you suffered a loss that no one of should ever experience. If you do, in addition to promising my best professional efforts, I will strive to understand your loss in your own terms.

The School Shooting in Newtown

One mass killing is one too many. We have seen far too many in any one of our lifetimes. The Aurora, Colorado tragedy is still fresh in our minds and it could have been surpassed by the Oregon mall shootings were it not for the perpetrator’s weapon jamming.

Today, Monday, December 17, 2012 we are all still trying to come to grips with yet another mass killing; this one took the lives of twenty of our nation’s most valuable treasures, our young children. The youngest was five and the oldest was seven. Losing any one of these beautiful young people would have been tragic regardless of the reason; to have lost so many in such a senseless and incomprehensible way is grotesque. Add to the loss of these young people the adults who had committed their lives to the education, well-being, and moral compass of all young people and this catastrophe takes on even greater significance. We may yet find an accurate connection between the perpetrator and the school, one of the families, or one of the faculty members but as it stands, the senselessness of this brutality is compounded by the lack of any apparent motive or connection.

We have put off for too long the dialogue we must have as we begin trying to make certain that the survivors of those lost know that our support and love is with each and every one of them. This isn’t a time for the extremist, those who oppose all firearms on the one hand and those who believe that even the most reasonable and responsible regulations are in absolute derogation of their second amendment rights, to control the dialogue. Few could argue that the solution is to ban all firearms or to even ban most firearms. Few could argue that the second amendment, as valuable and important a part of our freedom as any other provision of our Bill of Rights, is so sweeping and sacrosanct that any regulation is an overreaching infringement on our rights. Rather, it is the time for reasonable people to identify their common objectives and to work through their differences to achieve those objectives.

It is also important to note that this is not just a second amendment or gun ownership issue. Events like this were so rare when I was growing up that it was easy to see that in one given instance there was a breakdown. It may have been at the family level, the school level, or at some other social level. Now these events occur more frequently and while family, school, and society are factors, the increase in this senseless violence must cause all of us to reevaluate our roles in our own families and our own environments. Each of us can clearly do a better job in our lives and that includes using our best efforts to be a positive influence for all those around us; it also includes facing the issues and not side-stepping reality. Time is critical and the issues are essential. Each of us will hopefully find a way to participate in searching for a solution.

I will keep the people who are living through this tragedy, the surviving parents, siblings, spouses, and other family members as well as the young children and adults who lived this tragedy firsthand, in my thoughts and prayers and ask that they be blessed with the strength and courage they will need to both accept that those they lost are serving a greater purpose and to know that as a nation we just may be able to take the destruction of this tragedy and build a better way.

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