This is a post from my old blog.
I read a recent criticism of the McDonald's coffee verdict. This seems very timely, considering the incident happened in 1992, and the trial in 1994. I would be interested to hear the author's view on The Arsenio Hall Show and Beverly Hills 90210 as well.
But my real concern is the lack of any knowledge as to why this suit happened. I am not claiming that it was the greatest lawsuit ever, but it was over a lot more than "hot coffee."
Stella Liebeck was 79 years old on February 27, 1992. She was riding as a passenger, with her grandson. He pulled the car from the drive-thru window and stopped so she could add cream and sugar. She tried to open the lid, and the coffee spilled.
The coffee was approximately 190 degrees, or 22 degrees from being boiling water. It was kept that hot so that it would taste good. By comparison, coffee at home is often SIXTY DEGREES COOLER. At that temperature, she was burned within two to seven seconds, and the cotton sweatpants she wore held the water close to her body.
Stella suffered third-degree burns over six percent of her body, including her inner thighs, and burns of some kind over an additional sixteen percent of her body. She required skin grafts, and spent eight days in the hospital, and was in physical therapy for two years.
Stella asked for $20,000 to settle this case, which essentially covered her medical bills and attorney's fees. McDonald's refused.
During trial, McDonald's claimed that people buy their coffee not intending to drink it in the car, but to take it to work or home, thus allowing it time to cool. We all know that's a bald-faced lie, but what were they going to say? We choose to serve our coffee so hot it can cause a third-degree burn within less than five seconds? The trial brought to light that there had been more than 700 complaints and serious burns over the previous ten years.
By contrast, an expert testified that if the coffee had been served at 155 degrees, it would have cooled before causing serious burns.
The jury found compensatory damages to Stella at $200,000, then reduced the amount by twenty percent because it found her to be twenty percent at fault. The jury then found $2.7 million against McDonald's for punitive damages. The judge reduced that amount to $480,000 within days of the trial. The $2.7 million? The jury calculated that was two days of coffee sales for McDonald's.
Now, I don't know how the author feels about third-degree burns to grandmas, but I'm on record as being against them. I'm not saying that this case was Brown v. the Board of Education, but it was a serious case against a company that really didn't care.
In addition, the lawsuit caused the industry to make other changes:
- Safer coffee lid and cup designs that make it far harder to spill an entire cup of coffee.
- Cups made out of more thermal materials. While Styrofoam and thermal foam keeps the coffee inside hotter for longer, it also insulates your fingers from the hot liquid inside.
- Cup sleeves as common practice.
- A new policy that holds true at nearly all fast food drive thrus – the server must cream and sugar your coffee if you request it. In fact, most restaurants no longer serve takeout coffee black with cream and sugar on the side.
But the fact that the author had to go back fifteen years to find something to complain about goes to show that our system really isn't that bad. Judges throw out meritless cases every day.
How about no more frivolous columns about lawsuits?
Sunday, August 22, 2010
The Jury in the Twitter Age
This is a post from an old blog.
For essentially five hundred years, the Anglo-American system of justice has been about trying to weed out information that was potentially biased.
You can't use what other people say to you without calling those people to the stand (with some specific exceptions), you can't use scientific information unless you can show it's valid.
It's an exercise in giving a few people who don't have strong feelings on an issue the power to decide that case, feeling that they would be in a better position to hear these "trusted" pieces of evidence and decide the matter based on them. Had a DWI ten years ago? Well, the jury might not find that out in a trial accusing you of theft. We don't want the jury colored by facts that may not paint you as the greatest character, but doesn't really bear on the case at hand.
Except no one told the rest of the world. Snap judgements? We got em.
Biased information? Boo ya. We're all over the place, in 140 characters or less. Arrest records, embarrassing Facebook photos, whatever you can think of, we can unleash it. It's one google away.
But that's really earthshattering to a jurisprudential system that has always placed a premium on the sanctity of the jury room, and to the facts that the judge decides should be let in.
In a recent Arkansas tort case , a defense attorney sought a new trial after a jury member tweeted, "So, Johnathan, what did you do today? Oh, nothing really.
I just gave away TWELVE MILLION DOLLARS of somebody else's money!"
Thirty-four minutes later, the same juror wrote, "Oh, and nobody buy Stoam.
It's bad mojo, and they'll probably cease to exist, now that their wallet is $12M lighter."
Not exactly the tone we want coming from someone who had just sworn an oath to listen to all the testimony before making his decision. And with all the information that a juror has after a day of hearing testimony, it is only going to get worse. Jurors will research the case, and essentially become detectives themselves.
What to do? I don't know, but I've got a few suggestions:
1. STRESS WHY THIS IS IMPORTANT. Look if YOU were on trial, wouldn't you want a judge telling you what facts are legally important to a case? It sounds great when you don't have anything to lose, but this is different.
It needs to be treated that way. Lawyers are going to have to come off of their Latin-tinged high horse and speak to people directly:
THIS ISN'T FAIR. THE JUDGE KNOWS WHAT INFORMATION YOU NEED TO DECIDE THIS CASE. THAT'S THE RULES WE ALL AGREE ON. WOULDN'T YOU WANT THAT IF YOU WERE HERE?
2. ALLOW MONITORED TWEETING. Let the jury tweet questions to the judge.
You could keep a record of it, and the judge could decide which, if any, of those questions to ask the witnesses. Let them be involved in some way that makes their courtroom experience less different from their real-life experience, and maybe people will be less likely to go searching on their own.
3. GIVE THE JURY THEIR OWN MULTIMEDIA CONTENT. Provide them with discs with all exhibits from both sides. Let them take and study the parts that all agree are worthy of study. Again, maybe by providing them with an outlet from now-idle hands, you can keep them from going so far afield.
Something's going to have to give. We cannot live in the information-rich world that we do and expect people to sit on their hands when they join a jury. But we must make sure that what we give them is valuable and within the spirit of the law. Those five hundred years have produced a pretty great system. We just need to make it last longer than this morning's tweet.
Rethinking Justice
This is a post from one of my old blogs.
Courts, like almost all areas of our society, are feeling the sturm und drang of this dead-fish economy. Crime is up, money is down, and the strain can be seen everywhere.
Maybe that's not all bad.
Courts have long been burdened with cases that they don't need to handle. Over-harsh drug laws and driving restrictions have created major distractions that the courts can no longer afford to handle.
Here are my thoughts on how to handle it:
1. Decriminalize first-time marijuana use. This writer would like to see marijuana legalized, but that's for another day. Decriminalizing first-time use is truly a practical consideration.
First-time marijuana use would come with a mandatory $500 fine and two-hour anti-drug seminar. This fine would be assessed in all cases, and, at the judge's discretion, could be paid over time. The first possession would not be a criminal offense, but would carry a finding that would make a second possession charge a misdemeanor.
This would take small-amount marijuana charges from a money-taker to a money-maker. Courts would unclog. It would give casual users a literal "get out of jail free" card, and allow those who make a single mistake to avoid being saddled with a criminal record.
2. Make marijuana cultivation and transportation into Class D Felonies. As you read this, an old hippie with a pot plant on his front porch has just been arrested somewhere. He had some good weed, man, that he wanted to grow before putting on that Dead show from Madison Square Garden in 89. He's never sold to anyone else, dude, and that's the truth.
Know what he gets charged with? The exact same crime as the toothless scumbag operating a meth lab with kids in the house; Manufacturing controlled substances. That's right: Growing a pot plant is "manufacturing" in Missouri. This is punishable by 5-15 years in prison.
Same thing is true for some poor mule carrying marijuana up I-44. If he's caught, there is no differentiation between marijuana and heroin or coke; they're all Class A felonies, and face the possibility of Life in Prison.
That's ludicrous.
If we continue to criminalize marijuana, the least we can do is differentiate between it and other drugs. How can you charge someone growing a pot plant for personal use with the same crime as a true drug dealer?
Again, this would have the effect of taking people out of prison, keeping people in prison for shorter amounts of time (a huge financial savings) and do the job our legal system is charged with: using our system of justice to keep us safe.
Even the Missouri Sentencing Advisory Committee, not exactly a bunch of potheads, indicate the benefits of community-based programs and drug courts instead of prison. That's great, when there's money to pay for it.
We are having to prioritize in every other area of our lives. We are buying smaller, less expensive cars; we are going out less. The same needs to be true for our criminal system. It is bloated, in need of care. We need to prioritize what really needs to be severely penalized.
Know how prison planners estimate an area's future prison needs? They use the percentage of current-day third graders who are behind in school. What if we could quit filling our prisons with people who could contribute to society and instead concentrate on keeping children from getting behind? What if we could even start with simply balancing the books? We're having to make changes everywhere; the justice system needs one too.
Courts, like almost all areas of our society, are feeling the sturm und drang of this dead-fish economy. Crime is up, money is down, and the strain can be seen everywhere.
Maybe that's not all bad.
Courts have long been burdened with cases that they don't need to handle. Over-harsh drug laws and driving restrictions have created major distractions that the courts can no longer afford to handle.
Here are my thoughts on how to handle it:
1. Decriminalize first-time marijuana use. This writer would like to see marijuana legalized, but that's for another day. Decriminalizing first-time use is truly a practical consideration.
First-time marijuana use would come with a mandatory $500 fine and two-hour anti-drug seminar. This fine would be assessed in all cases, and, at the judge's discretion, could be paid over time. The first possession would not be a criminal offense, but would carry a finding that would make a second possession charge a misdemeanor.
This would take small-amount marijuana charges from a money-taker to a money-maker. Courts would unclog. It would give casual users a literal "get out of jail free" card, and allow those who make a single mistake to avoid being saddled with a criminal record.
2. Make marijuana cultivation and transportation into Class D Felonies. As you read this, an old hippie with a pot plant on his front porch has just been arrested somewhere. He had some good weed, man, that he wanted to grow before putting on that Dead show from Madison Square Garden in 89. He's never sold to anyone else, dude, and that's the truth.
Know what he gets charged with? The exact same crime as the toothless scumbag operating a meth lab with kids in the house; Manufacturing controlled substances. That's right: Growing a pot plant is "manufacturing" in Missouri. This is punishable by 5-15 years in prison.
Same thing is true for some poor mule carrying marijuana up I-44. If he's caught, there is no differentiation between marijuana and heroin or coke; they're all Class A felonies, and face the possibility of Life in Prison.
That's ludicrous.
If we continue to criminalize marijuana, the least we can do is differentiate between it and other drugs. How can you charge someone growing a pot plant for personal use with the same crime as a true drug dealer?
Again, this would have the effect of taking people out of prison, keeping people in prison for shorter amounts of time (a huge financial savings) and do the job our legal system is charged with: using our system of justice to keep us safe.
Even the Missouri Sentencing Advisory Committee, not exactly a bunch of potheads, indicate the benefits of community-based programs and drug courts instead of prison. That's great, when there's money to pay for it.
We are having to prioritize in every other area of our lives. We are buying smaller, less expensive cars; we are going out less. The same needs to be true for our criminal system. It is bloated, in need of care. We need to prioritize what really needs to be severely penalized.
Know how prison planners estimate an area's future prison needs? They use the percentage of current-day third graders who are behind in school. What if we could quit filling our prisons with people who could contribute to society and instead concentrate on keeping children from getting behind? What if we could even start with simply balancing the books? We're having to make changes everywhere; the justice system needs one too.
Lightning Rod
Note: This is an old post from an old blog of mine.
When I grew up, pretty much in the middle of nowhere, far from much of a music scene, too young to go to bars, the <span style="font-style: italic;">Rolling Stone Encyclopedia of Rock and Roll </span>was my musical classroom. My dad bought it for me for my eighth birthday, and because it had the odd boobie uncovered inside, he made me keep it at his office and not tell my mom about it. He told me it was fine to read it, but not to get any ideas.
A couple of years later, I brought it home, and pretty much read it from cover to cover. And I got lots of ideas. Truly, I probably read it <span style="font-style: italic;">too</span> much, not really understanding that there were wildly divergent views on the import of certain artists. That book's views, to a great extent, became my emerging musical views.
The article on Rod Stewart, by noted music journalist Greil Marcus, begins with one of the more famous lines in rock criticism:
<span style="font-style: italic;">Rarely has a singer had as full and unique a talent as Rod Stewart; rarely has anyone betrayed his talent so completely.</span>
That said all that was needed to be said, didn't it? I literally didn't read on.
So I spent my formative years second only to Johnny Rotten in my disdain for Rod Stewart. Until I heard <span style="font-style: italic;">Every Picture Tells a Story</span> and until I learned about The Faces (who were completely marginized in the good ol' <span style="font-style: italic;">Encyclopedia</span>, to its detriment). And then I couldn't get enough of either: The Faces now to me embody the essence of why I like rock and roll, and Stewart's early solo work is some of my favorite music.
Stewart's first solo album, called in America simply <span style="font-style: italic;">The Rod Stewart Album</span>, plays like a series of short stories, all seemingly honest and intimate. If Stewart's contributions to The Faces were the musical equivalent of the misdeeds and mistakes of a barroom braggard, Stewart's early solo records were the lamentations of the drunk at the end of the night willing to tell you the whole story.
That album, followed by <span style="font-style: italic;">Gasoline Alley</span>, <span style="font-style: italic;">Every Picture Tells a Story</span> and <span style="font-style: italic;">Never a Dull Moment</span>, showed an artist who had the pipes of a nicotine angel, a writer capable of incredible detail and depth, and an absolutely first-rate curator and interpreter of the work of others; try to listen to Dylan's own version of "Tomorrow Is A Long Time" after hearing Stewart's breathless, poignant take. Moreso, try to let Elvis reclaim "That's All Right"; Stewart's work was every bit as good, if not better, than the masters of the realm.
And then he lost it. Completely. No artist has managed to so utterly divorce himself from his greatness. His appearance on <span style="font-style: italic;">American Idol</span> showed him unable to carry a tune and trucking only in musical cliches. His recent work suggests that he has completely abandoned the entire world except for a certain section of menopausal women who will forever carry his torch and buy anything, no matter how trite, as long as his picture is on it.
This is all old news, but I have been amazed at the number of Rod Stewart discussions on Facebook and in cyberspace (see Toby Weiss' <a href="http://tobymelt.blogspot.com/2005/09/dya-think-im-sexy.html">great piece on the "D'Ya Think I'm Sexy" sessions</a>). They always start the same way, with praise for the early years, and they end the same way, slagging what he later became. It is as if we all take his defection personally.
But why? Why do we continue to publicly disown Rod when most if not all of his peers have become paunchy and musically flabby? I think it comes down to two reasons:
First, the early Rod Stewart output is flawless and timeless. It has aged better than many of the well-received albums of the time. It doesn't rely on studio trickery or musical novelty; it relies on wit, wisdom and emotion, on good taste and the intangibles of a great rock and roll band. It's music that sticks with you, which is a wonderful thing for an artist -- unless you decide to abandon the ship.
Second, it's what Rod left us for. He didn't leave us for madness, he wasn't from another age and unable to adapt. Rod left us for a better-looking but ultimately vacuous woman. And, frankly, he's never really acted like he regretted the choice. He traded a forty for two twenties, and continues to do so.
I find this all interesting because there is such an assumption on the part of music fans that Rod Stewart somehow owed us a duty to be great, in the same way that we might look at Dolly Parton or James Taylor or Paul McCartney and feel that they similarly fell short after showing us their brilliance. But that's <span style="font-style: italic;">our </span>standard, not theirs. Why do we assume that we know what is best for him?
In referring to his soccer-playing days, Stewart had a telling and truthful quote about why he didn't make it as a pro: "I had the skill but not the enthusiasm." The same could seem to be said about Stewart's musical career. And it's his utter indifference to what we care about that makes him so maddening.
I remember Rick Rubin's quote about why he went after Johnny Cash to produce. He said he was looking for great artists who weren't making great records. I wish we could get Rubin to take on Stewart as his next project, but, sadly, I'm not sure Rod would even care. Frankly, I wish I didn't either.
When I grew up, pretty much in the middle of nowhere, far from much of a music scene, too young to go to bars, the <span style="font-style: italic;">Rolling Stone Encyclopedia of Rock and Roll </span>was my musical classroom. My dad bought it for me for my eighth birthday, and because it had the odd boobie uncovered inside, he made me keep it at his office and not tell my mom about it. He told me it was fine to read it, but not to get any ideas.
A couple of years later, I brought it home, and pretty much read it from cover to cover. And I got lots of ideas. Truly, I probably read it <span style="font-style: italic;">too</span> much, not really understanding that there were wildly divergent views on the import of certain artists. That book's views, to a great extent, became my emerging musical views.
The article on Rod Stewart, by noted music journalist Greil Marcus, begins with one of the more famous lines in rock criticism:
<span style="font-style: italic;">Rarely has a singer had as full and unique a talent as Rod Stewart; rarely has anyone betrayed his talent so completely.</span>
That said all that was needed to be said, didn't it? I literally didn't read on.
So I spent my formative years second only to Johnny Rotten in my disdain for Rod Stewart. Until I heard <span style="font-style: italic;">Every Picture Tells a Story</span> and until I learned about The Faces (who were completely marginized in the good ol' <span style="font-style: italic;">Encyclopedia</span>, to its detriment). And then I couldn't get enough of either: The Faces now to me embody the essence of why I like rock and roll, and Stewart's early solo work is some of my favorite music.
Stewart's first solo album, called in America simply <span style="font-style: italic;">The Rod Stewart Album</span>, plays like a series of short stories, all seemingly honest and intimate. If Stewart's contributions to The Faces were the musical equivalent of the misdeeds and mistakes of a barroom braggard, Stewart's early solo records were the lamentations of the drunk at the end of the night willing to tell you the whole story.
That album, followed by <span style="font-style: italic;">Gasoline Alley</span>, <span style="font-style: italic;">Every Picture Tells a Story</span> and <span style="font-style: italic;">Never a Dull Moment</span>, showed an artist who had the pipes of a nicotine angel, a writer capable of incredible detail and depth, and an absolutely first-rate curator and interpreter of the work of others; try to listen to Dylan's own version of "Tomorrow Is A Long Time" after hearing Stewart's breathless, poignant take. Moreso, try to let Elvis reclaim "That's All Right"; Stewart's work was every bit as good, if not better, than the masters of the realm.
And then he lost it. Completely. No artist has managed to so utterly divorce himself from his greatness. His appearance on <span style="font-style: italic;">American Idol</span> showed him unable to carry a tune and trucking only in musical cliches. His recent work suggests that he has completely abandoned the entire world except for a certain section of menopausal women who will forever carry his torch and buy anything, no matter how trite, as long as his picture is on it.
This is all old news, but I have been amazed at the number of Rod Stewart discussions on Facebook and in cyberspace (see Toby Weiss' <a href="http://tobymelt.blogspot.com/2005/09/dya-think-im-sexy.html">great piece on the "D'Ya Think I'm Sexy" sessions</a>). They always start the same way, with praise for the early years, and they end the same way, slagging what he later became. It is as if we all take his defection personally.
But why? Why do we continue to publicly disown Rod when most if not all of his peers have become paunchy and musically flabby? I think it comes down to two reasons:
First, the early Rod Stewart output is flawless and timeless. It has aged better than many of the well-received albums of the time. It doesn't rely on studio trickery or musical novelty; it relies on wit, wisdom and emotion, on good taste and the intangibles of a great rock and roll band. It's music that sticks with you, which is a wonderful thing for an artist -- unless you decide to abandon the ship.
Second, it's what Rod left us for. He didn't leave us for madness, he wasn't from another age and unable to adapt. Rod left us for a better-looking but ultimately vacuous woman. And, frankly, he's never really acted like he regretted the choice. He traded a forty for two twenties, and continues to do so.
I find this all interesting because there is such an assumption on the part of music fans that Rod Stewart somehow owed us a duty to be great, in the same way that we might look at Dolly Parton or James Taylor or Paul McCartney and feel that they similarly fell short after showing us their brilliance. But that's <span style="font-style: italic;">our </span>standard, not theirs. Why do we assume that we know what is best for him?
In referring to his soccer-playing days, Stewart had a telling and truthful quote about why he didn't make it as a pro: "I had the skill but not the enthusiasm." The same could seem to be said about Stewart's musical career. And it's his utter indifference to what we care about that makes him so maddening.
I remember Rick Rubin's quote about why he went after Johnny Cash to produce. He said he was looking for great artists who weren't making great records. I wish we could get Rubin to take on Stewart as his next project, but, sadly, I'm not sure Rod would even care. Frankly, I wish I didn't either.
Subscribe to:
Posts (Atom)