Tuesday, August 03, 2004
I can't quite manage to stay out of a debate among a set of blawgers (legal bloggers), all of whom — as my blogroll implies — I regularly read, and considerably admire.
The debate involves products liability law and specifically Liebeck v. McDonald's Restaurants, P.T.S., Inc. (a.k.a The McDonald's Coffee Case), and the debaters are at Professor Bainbridge, Ted Frank at Overlawyered, and The Curmudgeonly Clerk. Each makes excellent arguments; as I read each of their posts, I find myself nodding my head and saying, "Uh-huh, uh-huh ...." To attempt to summarize each of their arguments here would blow my TypePad bandwidth for the month, I fear. Suffice it to say, the Clerk defends the idea that McDonald's could appropriately be held liable by a court and jury on the facts of the McDonald's coffee case, while Mr. Frank and the good Professor think this verdict is an example of "trial lawyers" (by which they mean the plaintiffs' personal injury bar), and the juries and the trial and appellate courts who sometimes side with them, run amok.
It's been some years since I've tried a products liability case, and I can't claim that my knowledge of the state of the law — even in Texas, where I practice — is comprehensive and up-to-date. I've certainly made no effort to read all of the cases and other sources cited by these debaters, much less to do any independent research. As all of their posts make clear, however, the state of consumer knowledge and expectations becomes terribly important in this type of tort litigation, whether brought under old-fashioned negligence theories or comparatively new-fangled products liability theories.
So reading their debate brought back to my recollection something I saw repeatedly some two decades ago when I had the privilege of helping represent the local electric utility (then known as Houston Lighting & Power Co.) in lawsuits brought by persons who'd been injured after coming into contact — either themselves, or through some conductive material like a stepladder or sailboat mast — with an energized overhead power line. (I've written before at some length about a case I tried involving an injured HL&P employee that raised related but somewhat different issues.)
Typically in those cases, counsel for the injured plaintiffs would make use of a "shocking" (pun acknowledged but unavoidable and unintended) fact to grab the prospective jurors' attention and sympathies during jury selection. It would go something like this:
How many of you good folks have a set of power poles running down the back of your home's property line, with a power cable looping down to bring power into your house? Ahhh, I see by your nods and your raised hands that almost all of you do! Yep, they're everywhere, and we certainly take them for granted.
But didja know, ladies and gentlemen, friends and neighbors, that the Power Company runs those cables to your houses, through your backyards — where your little boys and girls play and you barbecue and where you have to stand on a stepladder to clean the leaves out of your gutter — without putting any insulation on those cables?
Didja know that those are deadly-powerful bare steel cables carrying enough electrical current to fry you and your entire family to a crisp, in an instant? Enough power to leave a man like my poor client, Mr. Chapple over there in his wheelchair, with nothing but two stumps below his knees where his feet and lower legs used to be, with nothing but one mangled arm covered with horrible scar tissue, after only barely coming into contact with that naked, uninsulated steel power line cable for less than half a second?!?
No? You didn't know that? The Power Company didn't tell you that in all those monthly bills they've been sending you? They didn't put that in their TV commercials, to warn you that you have an uninsulated killer running through your backyard?
Of course, this line of argument can be fairly compelling — and one of the advantages that all plaintiffs' counsel have is getting to go first — which is to say, getting the first chance to frame the issues in the case in an emotional way that will resonate with the jury. A plaintiffs' lawyer worth his salt can usually put his defense counterpart into a considerable hole with the prospective jurors before the defense lawyer ever gets to say a word.
So how did we respond, when it was our time to speak during jury selection? Well, with something generally like this:
My opposing counsel, Ms. Purcell, asked you some questions about the electric lines that run from the backyard poles to your houses, and I saw on your faces that some of you were very surprised indeed to hear Ms. Purcell say that those lines are uninsulated, bare steel cables. When Ms. Purcell said that, I'll bet you were thinking of the cord that runs from your wall socket to your desk lamp or your toaster or your washing machine, and how that cord is covered with a layer of rubber or plastic insulation, and you were wondering to yourselves, "Well, for pete's sake, why doesn't the Light Company use an insulated cable to bring the power into my house?" Were you thinking that? You were?
Ladies and gentlemen of the panel, if you're selected to this jury, you'll hear testimony from people who will answer that question for you — to your complete satisfaction.
They'll explain to you why it is impractical from a technical, engineering standpoint, to insulate those overhead lines with rubber or plastic in the same way the electric cords inside your house are insulated. They'll explain to you that bare metal lines are not uninsulated — if they were truly uninsulated, the electric current would "go to ground" or "short out" instead of making it into your home to light your lamps and run your alarm clock. Those lines are indeed insulated, by an excellent and inexpensive substance that's plenty nonconductive for real-world situations — the air that you and I are breathing right now, and the clearance space around those lines! They'll explain to you why the flock of cowbirds that you cuss out when you have to wash their droppings off your back porch don't get electrocuted when they sit for hours on those overhead lines, squawking and courting and doing what cowbirds do, including — well, you know. [Wait for chuckles to subside.]
Those witnesses will also explain to you that bare metal overhead lines are absolutely standard and commonplace throughout the electrical utility industry — not just in Houston, or Texas, or the United States, but the whole world. And they'll tell you about the National Electric Safety Code and the other regulations that careful, safety-conscious professionals have drawn up and revised over the years, to try to make sure that in ordinary everyday situations, those overhead lines are insulated by enough space and enough air to make sure that you and your kids — and they and their own kids! — can indeed play in the backyard and barbecue and yes, clean the leaves out of your rain gutters, and do so with a high degree of safety.
And they'll explain to you what other alternatives there are — for instance, using buried, insulated cables underground — and they'll tell you how much it costs to do that, and how only businesses and exclusive new subdivisions of fancy houses typically choose to go that route, and why even those alternatives have their own risks and downsides, in terms not only of safety, but of inaccessibility, unreliability, and expense to maintain.
By this point I've been lecturing for a long time, and I can see Ms. Purcell getting set to stand up and object that I'm arguing rather than asking questions to qualify or disqualify prospective jurors. Plus, to keep the panel's attention, I need to let them hear another voice or two speak, and I want to make them ask themselves the questions they're about to hear, which they'll do when they hear me ask something directly of one of their fellow panel members:
So my question to you now, ladies and gentlemen, is whether the surprise I saw on your faces when Ms. Purcell told you that the electric lines running overhead in your back yard are bare metal cables is something you can deal with and still be a fair juror to both sides in this case.
Mr. Smith, there in the first row, let me ask you, sir, just at random — if you're chosen to this jury, if you take the juror's oath to render a fair decision based on the evidence from the witness chair, can you make yourself get over your surprise at learning something you didn't know before, and keep learning all the important facts, and only then come to the conclusions you'll need to make in order to answer the questions His Honor will ask you at the end of the case? You can? [Pause to look into Mr. Smith's eyes, then nod.] Yessir, I believe you can follow that oath if you're chosen.
Now, so far, I've done some teaching and some explaining. I've gotten Mr. Smith (and implicitly his fellow prospective jurors) committed to keep an open mind and to wait for the evidence.
But I need more. I need something that resonates with the jury on a deeper level, that will give them an assurance that my case is not going to be all fast talk and experts and excuses, but that I'm also going to be pointing out to them some things that they already knew — even if they forgot them for a moment while they were listening to my opponent. So, continuing with my voir dire examination for the defense:
Ms. Jones, there on the right in the second row — let me ask you, ma'am, and I need you to tell me the whole truth to this question, because I saw your jaw drop when Ms. Purcell was talking about those so-called uninsulated cables. Were you surprised to learn that those overhead lines aren't coated in plastic or rubber or something? You were? Then let me ask you this, ma'am. Before you came in here today, did you think it was safe to get up on a ladder, a really tall one, and to reach up and touch one of those cables, on purpose, with your bare hand? No? Heh, you're laughing at me now, but I'm serious here. How'd you know it's not safe to do that? Did your mama teach you about that? Did you hear it in one of those safety presentations we all had to go to in junior high, when someone from the local power company came and told us about where not to fly our kites? You can't remember — but you did know that, didn't you, even before you came here today.
I'll bet you don't know the precise metallurgical formula for the metal those cables are made of, do you? (Wanna know a secret? I don't either!) I'll bet you don't know how many milimeters thick they are, or how many strands of metal are braided together to make them, or where the factory was where the cables in your backyard were manufactured, do you? The Light Company never ran a TV commercial to tell you that? No? Well, Ms. Jones, it says on your juror form that you have four children, and as young as you are, I'll bet they can't be very old. If the Light Company had sent you one, would you have time in the evenings to sit the family down to listen to you read aloud from an insert in your electric bill to explain everything in the world about the engineering and materials of the overhead power lines in your backyard?
Okay, but then lemme ask you this, ma'am: If they're old enough to understand it, have you made the time to teach your children not to stick a metal fork into the wall sockets in your house? Do your children ever play with kites, ma'am? Have you made sure to tell them where it's safe to fly kites, and where it's not? Yes ma'am, I'll bet you surely have indeed. You strike me as someone who has some common sense, ma'am, so let me ask you this — if you're selected to this jury, when you're weighing the evidence to decide whether my client or anyone else was at fault in any way in connection with Mr. Chapple's accident, will you use that common sense, ma'am? Thank you, Ms. Jones! I appreciate your honesty, and if you're on this jury I'll trust you to follow your oath.
I can certainly see how good lawyers could nevertheless have lost the McDonald's coffee case. And I don't know as much about coffee as I do about power lines because I've never had a case about coffee. But I'll bet I could rewrite this sort of voir dire examination to fit hot coffee or a thousand other products that, in some circumstances, have ended up in a chain of events in which someone's gotten badly injured. With the tools the system provides me — the opportunities to educate jurors, to give context, to appeal to common sense — I've had pretty good fortune over the years. When I was regularly on the defense side of the docket, in almost every case I tried and won, there was a sympathetic plaintiff who'd been badly hurt, and there were attractive arguments to be made that my client was at fault. If you can't deal with that as a defense lawyer, you're in the wrong business.
So, frankly, I don't have the same reaction that Mr. Frank or Professor Bainbridge have to the McDonald's coffee verdict. I tend to view it as an aberration, rather than as something indicative of a basic flaw in the law or the civil justice system.
Other weblog posts, if any, whose authors have linked to McCoffee burns and sent a trackback ping are listed here:
» A Jury Selection War Story from The Illinois Trial Practice Weblog
Tracked on Aug 12, 2004 10:51:46 AM
(1) LazyMF made the following comment | Aug 6, 2004 11:21:58 AM | Permalink
Very well written and informative. I feel like I should get .25 hours of CLE for reading it
Heh, on my first read-through I missed the decimal point and thought you were making a back-hand remark about my prolixity. (Which would have been justified anyway.)
The trackback seems not to have gone through, but I linked to this entry on pointoflaw.com.
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