Wednesday Writs for 11/7

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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19 Responses

  1. Oscar Gordon says:

    L8: Pretty good sign that the judge needs to stop being a judge for a good long while.Report

  2. Maribou says:

    My Cousin Vinny! One of those movies I have been sucked into rewatching while idly flipping through channels more than a couple times. Underrated, IMO. Glad to hear it’s one of your faves.Report

  3. Richard Hershberger says:

    L1: Using the Stella Liebeck case as an example of a frivolous lawsuit always strikes me as confused. Given that it got to the jury, much less that she won, it by definition isn’t frivolous. Complaining about the verdict is more coherent, but these things always suffer from being a critique of the decision made by the people who saw all the evidence, with the critique based on news reports that are invariably incomplete by reporters who often don’t understand the issues and whose incentives are to favor simplistic and sensationalized stories. I roll my eyes at these critiques.Report

    • The term “frivolous lawsuit” is one which frustrates me particularly, because it’s a really good example of people letting labels do their thinking for them, labels whose meanings they don’t particularly understand. The typical loud complainer about “frivolous lawsuits” often cannot, when asked, define the word “frivolous” with any precision in this context.

      “It’s a lawsuit that should never have been filed” is the approximate attempt I get back first.

      “So that means that there is some other kind of lawsuit that it was okay to file, right?”
      I ask. Sometimes I ask them to come up with a name for that other kind of suit, other times I suggest the phrase “righteous lawsuit.”

      “So how are we to tell the difference between a frivolous lawsuit and a righteous one?”

      “Well, the frivolous lawsuit is based on something that is just not true, or wrong, or not applying the law correctly.”

      “And who decides when something is true or not true? Isn’t figuring out what’s true and not true what a lawsuit is all about?”

      This is usually enough to flummox a layman. When I teach classes about law, I go further and educate about 12(b)(6), summary judgment, and anti-SLAPP motions, and the torts of malicious prosecution and abuse of process, and sometimes about bar discipline and Federal Rule 11.Report

  4. Richard Hershberger says:

    L3: I am surprised that Findlaw is surprised that Texas recognizes no duty of care under that fact set. I claim no expertise in Texas law, but that would have been my guess, had anyone asked. I just read (OK: skimmed) the opinion. Nothing jumped out at me as startling.Report

    • Oscar Gordon in reply to Richard Hershberger says:

      I’m not entirely sure how much of a duty of care a place like Wal-Mart has. Did the same employees recognize the woman as making multiple trips? If yes, what amount of duty should they have? I guess I’d have to know more about the evidence presented before I could really have an opinion regarding how much of a duty I would expect a business to have.Report

  5. Kolohe says:

    Came across this link last week. It puts the insularity of the SCOTUS/Harvard/Yale nexus in a different perspective.Report

  6. Ugh. The Liebeck case again. The legal industry has been trying to rewrite the history of that case for two decades. See the counterpoint by Walter Olson. The coffee was not unusually hot — the coffee industry recommends temperatures of around 200 degrees. 700 people suing McDonalds over the billions of cups they serve does not seem like a lot. And the only prior cases they’d settled was when they were at fault.Report

    • PD Shaw in reply to Michael Siegel says:

      Usually, the legal industry considers the evidence presented at trial, which isn’t what was discussed in that link. For one thing, there is a difference btw/ the ideal temperature to brew coffee and the safe temperature to serve coffee.Report

    • Re: the trade industry advice. That’s not necessarily serving temperature or even storage temperature, it’s brewing temperature. And just because the trade association says “this is how you do it” doesn’t mean they’re right, or at least not necessarily right for a particular purpose. 200 degree might be the right way to brew the coffee to get the best flavor, but giving liquid that’s twelve degrees shy of boiling to a person in a moving vehicle is a pretty damn obvious safety hazard.

      I also happen to disagree with the notion that coffee is best when brewed at 200 degrees. Coffee is best cold-brewed in the refrigerator overnight. Hot water brings out the bitter tannins in the beans; a cold-brewed coffee is much smoother and sweeter in flavor. That’s just my opinion, of course, it’s just that my opinion happens to be right.Report

      • Richard Hershberger in reply to Burt Likko says:

        A personal anecdatum is that before the Liebeck case, or at least before I was aware of it, I observed that McDonald’s coffee was served too hot to drink. Breakfast is the one meal I will voluntarily eat there, based on the food. A strike against it was that the coffee was so hot that I would have either to eat my breakfast before the coffee was drinkable, or let the food get cold. The claim that McDonald’s coffee was not unusually hot is risible.Report

    • I am shocked that Walter Olson is defending a huge corporations’s right to injure its customers without consequences.Report

  7. Em Carpenter says:

    I’m sorry the inclusion of this case made you go “ugh”. But as to your complaint, I disagree.
    It was served 20-30 degrees hotter than their own manual dictated. And 700 people scalded is 700 people scalded. I don’t think it matters that it was 700 out of a billion- it put them on notice.
    And they serve it to people in a moving vehicle, without the sugar and cream pre-added. What happened was foreseeable. Sure there was contributory negligence on the customer’s part, which the jury acknowledged.

    There’s no “re-writing” here. People rolled their eyes at this case as a plaintiff getting millions “for nothing” when in fact she was very seriously injured.Report

  8. George Turner says:

    Daily Mail article

    Pensioner, 69, ‘who identifies as a 45-year-old’ begins legal action to have his age reduced so he can attract more women on Tinder

    Emile Ratelband is a 69-year-old positivity guru famous in the Netherlands
    He says doctors told him he has a 45-year-old’s body and wants to be younger
    Ratelband is suing his local authority after they refused to amend his age

    To show why taking “self-identification” into legal consideration is nuts, Ben Shapiro once asked a student why people couldn’t just “self-identify” as a different age. Well, now we’re there.

    Next step: Forcing the legal system to release convicts who self-identify as innocent.Report

  9. CJColucci says:

    Have you ever pondered the ethical problem posed by the ending of Witness for the Prosecution? No spoilers.Report