A couple of small laughs

A couple of amusing things this morning, a dismal day here in Detroit.  First, from CNet comes the news that

A British woman has reportedly been kicked off a jury for posting a “note” on Facebook asking her friends what they thought of the trial.

She was given the boot after the court received a tip about the posting. . . .

The woman’s name has not been released, but the court appears to have been Burnley Crown Court in Lancastershire, and the case involved child abduction and sexual assault. According to The Sun, the woman posted details of the case on Facebook and added, “I don’t know which way to go, so I’m holding a poll.” Yeah, that’s bad.

The trial is said to have continued with 11 jurors instead of 12.

 And from Overlawyered comes the tip that Sullivan & Cromwell, a major and very established New York City law firm, employs an attorney named Soo Yoo.  Which reminds me of William Gaddis’s A Frolic of His Own, in which 

Oscar Crease [is] a college instructor who is suing both a film company and himself.  Firstly, he is convinced that a Hollywood mogul has plagiarised an unpublished play of his about the American Civil War and turned it into a blood-and-guts blockbuster.  Secondly, he has managed to get himself run over by his own car while hotwiring it and, through the insurance company, he is claiming damages against himself. 

The brand of Crease’s Japanese car? Sosumi.

If you scam a villain, maybe you’re a hero.

Han van Meegeren is known as the boldest modern forger of Old Masters. In the current issue of the New Yorker, Peter Schjeldal reviews two books about van Meegeren. Among other points, Schjeldal points out that art forgeries are far more expressive of the times in which they are created than of the times of the artists they imitate: “The art historian Max Friedländer . . . said, ‘Forgeries must be served hot,’ and “promulgated a forty-year rule—four decades or so being how long it takes for the modern nuances of a forgery to date themselves as clichés of the period in which they were painted.”

One of the most remarkable things about van Meergeren is that among his customers for forged Vermeers (van Meergeren’s specialty) was Herman Göring. As Schjeldal explains:

This small point is notable because, in time, the fact that van Meegeren had scammed Göring helped him not only to evade charges of collaboration but to become a folk hero. Lopez demonstrates how evidence of the painter’s coziness with the Occupation regime got buried by the single question of whether he had sold Göring a patrimonial cynosure (potentially a capital offense) or a worthless fake. Early in 1947, a newspaper poll found van Meegeren to be the second most popular man in the Netherlands, after the newly elected Prime Minister.

I can’t help but take this opportunity to plug one of my favorite all-time novels, The Recognitions, by William Gaddis. As explained on the Gaddis Annotations website (a project with which I have been lucky enough to have had an insignificant role), Gaddis’s novel can be “summarized” as follows:

In a carefully wrought and densely-woven series of plots involving upwards of fifty characters across three continents, we follow the adventures of Wyatt Gwyon, son of a clergyman who rejects the ministry in favor of the call of the artist. His quest is to make sense of contemporary reality, to find significance and some form of order in the world. Through the pursuit of art he hopes to find truth. His initial “failure” as an artist leads him not to copy but to paint in the style of the past masters, those who had found in their own time and in their own style the kind of order and beauty for which Wyatt is looking. His talent for forgery is exploited by a group of unscrupulous art critics and businessmen who hope to profit by passing his works off as original old masters. As the novel develops, these art forgeries become a profound metaphor for all kinds of other frauds, counterfeits and fakery: the aesthetic, scientific, religious, sexual and personal. Towards the end, Wyatt wrenches something authentic from what Eliot called “the immense panorama of futility and anarchy which is contemporary history.” The nature of his revelation, however is highly ambiguous and is hedged about by images of madness and hallucination, which disturbs simple distinctions between real and authentic, between faiths and fakes.

Effective Storytelling, McDonald’s Coffee, and the Law

That effective stories arise from a relatively limited set of recurring patterns is no secret. The existence of these archetypes may be one more blow to the Romantic myth that creativity grows out of individual genius, but, as regular readers of this page will learn, I don’t believe creativity arises, divinely inspired, from individual geniuses.

But creative lawyers know the patterns of effective stories, as I was reminded again the other day when I read Alexander Star’s review of Charles Tilly’s Credit and Blame. Star writes:

Reflecting on tort cases, Tilly suggests that we possess something like an “all-purpose justice detector.” When something good or bad happens, we measure the magnitude of the change, identify an agent who helped bring it about and assess how the agent’s skills, knowledge and intentions figure in the result. How much blame does the Ford Motor Company deserve when an Explorer rolls over on the highway? The answer, Tilly writes, depends on how badly the driver or passenger was injured, whether Ford should have known the crash was likely to happen and whether it intended to build the car the way it did. Lawyers argue this way in civil suits, but couples apply similar rules of thumb when they argue over who left the car windows down.

I think it is very astute of Tilly to identify this pattern of blame in tort cases: (1) how badly was the plaintiff injured, (2) should the defendant have known the injury was likely to happen, and (3) did the defendant intend to create the likelihood of the injury.

An excellent example of this pattern at work is the infamous McDonald’s Coffee Case, the inspiration for the Stella Awards, which “were inspired by Stella Liebeck, who in 1992, aged 79, spilled a cup of McDonald’s coffee onto her lap, burning herself. A New Mexico jury awarded her $2.9 million dollars in damages.”

Just last week at physical therapy for rapidly improving sciatica (thanks to my outstanding physical therapists), I was teased again with the way the McDonald’s Coffee Case exemplifies the supposed idiocy of the personal injury system. The physical therapists know I’m a law professor. How can I blame them? Tilly’s pattern explains their reactions perfectly: they must think the following: (1) How bad could the injury have been? We’ve all spilled coffee on ourselves. (2) Even if the injuries were bad, how could McDonald’s have known? Again, we’ve all spilled coffee on ourselves, and who among us have suffered burns meriting $2.9 million in damages? (3) McDonald’s sells coffee! How could it possibly have intended to burn Ms. Liebeck, when all it intended was to caffeinate her?

But a jury awarded Ms. Liebeck $200,000 in compensatory damages; this amount was reduced by 20 percent (to $160,000) because the jury found her 20 percent at fault. The jury also awarded her $2.7 million in punitive damages — but the judge later reduced that amount to $480,000, or three times the “actual” damages that were awarded. And that amount was compromised in a confidential settlement that resolved the appeal.

Were the jurors, judges, and lawyers who resolved this case simply insane? Are all the people who refer to the case when decrying the U.S. justice system just so much smarter than those people?

Ah, there’s another way of looking at the story, the way lawyers, juries, and judges look at cases they actually decide: through the evidence, and the evidence (as with the other facts from Ms. Lubieck’s case in this posti, from the True Stella Awards site) , viewed through Tilly’s paradigm, tell a very different story:

(1) How badly was Ms. Lubieck injured?

She ” was burned badly (some sources say six percent of her skin was burned, other sources say 16 percent was) and needed two years of treatment and rehabilitation, including skin grafts. McDonald’s refused an offer to settle with her for $20,000 in medical costs.”

(2) Did McDonald’s know the injury was likely to happen?

From 1982 to 1992, McDonald’s coffee burned more than 700 people, usually slightly but sometimes seriously, resulting in some number of other claims and lawsuits.

(3) Did McDonald’s intend to create the likelihood of injury?

McDonald’s quality control managers specified that its coffee should be served at 180-190 degrees Fahrenheit. Liquids at that temperature can cause third-degree burns in 2-7 seconds. Such burns require skin grafting, debridement and whirlpool treatments to heal, and the resulting scarring is typically permanent.

Witnesses for McDonald’s admitted in court that consumers are unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s required temperature, admitted that it did not warn customers of this risk, could offer no explanation as to why it did not, and testified that it did not intend to turn down the heat even though it admitted that its coffee is “not fit for consumption” when sold because it is too hot.

I’m not arguing that Ms. Liebeck’s case constituted the epitome of justice. As William Gaddis wrote, “Justice? – you get justice in the next world, in this world, you have the law.” What I am saying is that we are human, and we respond to the evidence we are told in the way we are told it. Effective lawyers know these truths. All truly creative people do.